Central Administrative Tribunal - Kolkata
Gonay Lokeshwar Rao vs C L W on 2 February, 2022
CENTRAL L ADMINISTRATIVE TRIBUNAL : KOLKATA BENCH oe 7 DATE OF DECISION: Om 08 S022. Q1A/350/1295/2020 WITH | - Q.A./350/1296/2020 ; - 0.4./350/1297/2020 ~ 0.A,/350/1298/2020° . ; °O.A. /350/1299/2020 - Gonay Lokeshwar Rao ; . a cececacecaeceesaecesseieaeesteres ceclestustiietgtnnesaceseenseeeteeesAPBICOMNS. MR PK. ROY: "MS S SARKAR beneeeeeees ; Cea unnnntninnnnennengnnnnrnnnnsns ish OVOCHE for the Applicant/s. : a Versus -- UO! (RAILWAYS): - | seneeeeees peseeacereneeeseneds soccer eeuessssqeeensueeaers cesseens seliaesesee veseeeeeees veeeen Respondent/s. . : MR H. GHOSH . seveeeeeees cencunnininstisiinindisnnnntiiesnsernsnnennniiannbOVOCAHe for the Respondeni/s "CORAM : HON' BLE MS. BIDISHA BANERJEE, JUDICIAL MEMBER - ; - HON' BLE DR. (MS. ) NANDITA CHATTERJEE, ADMINISTRATIVE MEMBER wa "Whether Reporters of local newspapers may be allowed to see the . Judgment? ye ; ce Yes/No sagt Whether to be feferred to the Reporter or not? Yes/No. oh Whether their Lordships \ wish to see the fair copy be wa ~ of the Judgment? , _ Yes/No ~ ty aot 1. 0.A/1295/2020 & Ors CENTRAL ADMINISTRATIVE TRIBUNAL' KOLKATA BENCH, KOLKATA 0.4/380/1295/2020 | _ 'Date of Order: 2°% AX. WITH : 0.A./350/1296/2020 rarer: 0.A./350/1297/2020 | pu PPAR A Ey - 0.A./350/1298/2020 Pathe y SURAT fy 0.A./350/1299/2020 -_ L aoa J Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member Gonay Lokeshwar Rao, son of Gonay Ram Murthy, residing at St. No. 46, Q.No. 11/A, Chittaranjan, Pin 713331. --Applicant in 0.A/350/1295/2020 -Vs- 1. Union of India, service through the Secretary, Ministry of Railway, Rail Bhawan, New Delhi -- 110001. 2. Chairman, Railway: Board, Rail Bhawan, New Delhi 110001. 3. . General Manager, Chittaranjan. Locomotive Works, At & P.O.Chittaranjan , District Paschim Bardhaman, PIN-713331, W.B. 4, Principal Chief Personal Officer, Chittaranjan Railway Works, AT " at Chittaranjan, District Paschim Bardhaman, PIN-713331 W.B.). 5. Assistant Chief Medical Superintendent (Admin), Chittaranjan Locomotive Works, AT & P.O.Chittaranjan , District Paschim Bardhaman, PIN-713331, W.B. ° 6. Assistant Personnel Officer (HQ) Chittaranjan Locomotive Works, AT & P.O.Chittaranjan , District Paschim Bardhaman, PIN- 713331, W.B. '. 7, Shibam Gupta, Department Administration under Secretary to / General' Manager, Chittaranjan Locomotive Works Pin 713331 (WB). ee 8. Barshan Dey, Department Administration under Secretary to General. Manager, Chittaranjan Locomotive Works Pin 718331 (WB). yO --Respondents For The Applicant(s): Mr. P. K. Roy, counsel 7 Ms. 8. Sarkar, counsel ; For The Respondent(s): Mr..H. Ghosh, counsel ORDER ; Per: Ms: Bidisha Banerjee, Member (J):
As common question of facts and law govern these matters, these cases are being heard out analogously, upon due notice and with consent of all b
2. 0.A/1295/2020 & Ors the sides, to be disposed of by this common order. For the sake of brevity, OA. No 350/1295/2020 is being delineated and discussed hereunder: -
2. Ld. counsels were heard.
3. This application has been preferred to seek the following reliefs:
"a) To set aside and quash the impugned order of termination dated -
10.12.2019 vide Memo. no.GMA/MR/CON/157/PT. IX issued on behalf of Principal Chief Personnel Officer, CLW;
b) To direct the respondents to continue his service as bunglow peon in the alternative assignment | in a transferred place where vacancy exists;
c) To direct the respondent to continue his service as Group D peon in the
- alternative assignment in a transferred place where vacancy exists in case where no vacancy exists for the post of Substitute Bunglow Peon and to make payment of his salary and other service benefits from the date of terminating his service.
'd) An order be passed directing the respondents not to give effect or further effect of the order of termination till the disposal of the O.A. Application;
-e) Any other order(s)/relief as the Hon'ble Tribunal! deems fit." 4, The applicant in this O.A has basically challenged the legality and propriety of his termination vide order dated 10.12.19 on the following grounds inter alia; --
i) That the engagement of the applicant was as a Substitute Bunglow Peon attached to Dr. Subimal Gupta, ACMS/Admn., CLW/Chittaranjan, w.e.f, 23.10.2019 on a basic pay of Rs. 18000/- in Level -01 of Pay Matrix under RS(RP) Rules 2016 with immediate effect against an existing vacancy of permanent post. | roof
ii) The termination is entirely against the principle of natural justice and * violative of article 14 and 16 of the Constitution of India and dehors to the law and liable to be interfered with.
iii) The order of termination isa cryptic one, issued without assigning any reason whatsoever as such the said order is liable to be 'set-aside. . 3 - 0,A/1295/2020 & Ors
iv) The order of termination is issued in flagrant violation of Principles of natural justice.
v) The order of termination is bad in law for want of approval of the General Manager since the applicant was with such approval.
vi) The order of termination is dehors the Office circular of the General Manager dated 27.11.2007, as such the said order is liable to be set aside.
vii) That, one month's notice was not served before issuing the impugned order of termination, as such the said order was passed. in hot haste without following the guidelines and is not sustainable in the eye of law. _ 5. The Ld. counsel for the applicant, Shri P.K. Roy, would, at the time of hearing draw our attention to the following:
(i). Engagement Order dated 23.10.2019 which reads as under (extracted with supplied emphasis for clarity;
"Approval of the General Manager _is hereby communicated to the engagement_of G Lokeshwar Rao, S/o Sri G. Ram Murty as Substitute. ' Bungalow Peon with Dr. Subimal Gupta, ACMS/Admn., CLW/Chittaranjan on Basic Pay Rs.18,000/- in Level-O01 of Pay Matrix under RS(RP)Rules 2016 with immediate effect against the existing vacancy of permanent post.
'Hence, the staff concerned is directed to report to-you for further posting with intimation to this office. , Necessary office order may please be issued from your end duly incorporating following stipulations.
1. His engagement will be on probation for a period of three years and his continuance in service as Substitute Bungalow Peon during the of probation and thereafter is subject to fhe satisfactory performance _in the job of Substitute Bungalow Peon and subject to verification of character and attendance. ,
2. His service on:probation period is liable to be terminated without any notice if any document/certificate is found to be false later on. ..."
Placing the above, ld. counsel would vociferously argue that the | engagement admittedly being made with approval of the G.M, thereto _ against a sanctioned post, on probation for three years, the probation 4 _ 0,A/1295/2020 & Ors | period could not have been curtailed by way of termination ordered by an officer in lower form.
_ 4) Ld. Counsel would place the Pay slip (at Annexure 17 to the 0.A), to demonstrate that the engagement had all 'attributes of a regular appointment as under:
"Provisional salary for Nov 2019 Chittaranjan Locomotive Work Page No. 41 S. No. . 122 Bill Unit 1101-842 (842-Medical Group D STN, CLWTS Dept:Medical, Emp. No.: 51110800509, Name : GANAY LOKESHWAR RAO F/H; GANAY RAM MURTY, DOB: 01-07-1994 DOA- 23-10-2019, DOR: 30-06-2054 PAN ; BCLPR7836K Desg: B. Peon, PC7 LEVEL:1, LAP:15, LHAP: 10 (Leave Bal are provisional) Basic Pay: 18000, Duty/LV Days;30/0 DOI: 01-07-2020 Aadhar No: 294xxxx249 Earning * Amt. Earning Amt Deduction Amtl/Due Deduction Amt. i/Due PAY 18000 ~~ CGIS-C 9 DA 3060 P-TAX (WB) 130 TRAN 1053. | Gross Pay:22113 Gross Ded, 139 Net Pay 121974 (TA Months IFSC/MICA SBINO010219 *PF Bal:0 *PROV PF BAL As on 01/11/2019 BANK: SBI CLW Works Premises. ACNO: *****313 Pay Mode B fear / act TAVCLWIPAY SLIP."
iii) Further, that, the termination order dated 10.12.2019 (Annexure A-4 _to.the O.A), to contend that the termination is arbitrary, made by an incompetent person and in violation of terms of engagement. The order dated 10.12.2019, reads as under;
"CLWI/CHITTARANJAN GMA/MRICON/M57 PLIX(SG) Dated. 10-12-2019 OFFICE ORDER The services of G. Lokeshwar Rao, S/o Shri G. Ram Murthy, who was engaged Substitute Bungalow Peon to Dr. Subimal Gupta, ACMS/Admin, vide this office letter of even no. dated. 23-10-2019 is hereby terminated w.e.f. 10-12-2019 (A/N). This has the approval of Competent Authority.
(sd./-------) For Principal Chief Personnel Officer"
5 - 0,A/1295/2020 & Ors Ld. counsel would heavily rely upon the following decisions; I) Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D .ED) and Others [(2013) 10 SCC 324].
ID. Webfil Ltd. Vs. Dipesh Kumar Bagchi & Anr [WPA 6797 of 2018], Where the following judgement was 'delivered by the Hon'ble High Court;
"12. .While terminating the petitioner only a clause in his appointment letter was used to terminate his service and there was no domestic enquiry against the employee. Such clause of termination of service by giving ane months' notice is not an acceptable situation at all in view of the change of the entire atmosphere of employer-employee relationship in last 60/70 years and such high-handed action of termination which fits in a feudal minded © society for termination of service of a person by merely giving a notice without holding him _ quilty of any offence is wholly unfit in the atmosphere of a democratic country like ours where the dynamics of law is towards fairness in all actions,
13. In this respect the employee has referred to one judgment reported in (2010) 3 SCC 192 (Harjinder Singh -versus- Punjab State Warehousing Corporation) where the 'Supreme Court
- has shown the way that Is to be followed while granting relief to the weaker section of this country respecting the constitutional provisions. Some paragraphs: of that judgment are - required to be quoted:
' "37, As early as in 1956, in a Constitution Bench judgment dealing with Article 32 petition, Vivian Bose, J. while interpreting Article 14 of the Constitution, posed the following question:
"23, After all, for whose benefit was the Constitution enacted?"
(Bidi Supply Co. v. Union of India [AIR 1956 SC 479], AIR at p. 487, para 23)
38. Having posed the question, the ledrned Judge answered the same in his inimitable words and which | may quote: (Bidi Supply case [AIR 1956 SC 479], AIR p. 487, para 23) "23. fam clear that the Constitution is not for the exclusive benefit of Governments_and States: it is not only for lawyers and politicians and officials and those highly placed, It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the 'butcher, the baker and the candlestick-maker™. It lays down for this land ,,a. rule of law" as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the 'individual side by side and consistent with the overriding power of the State to act for the ~ common good of all."
39, The essence of our Constitution was also explained by the eminent jurist Palkhivala in the following words: "Our Constitution is primarily shaped and moulded for the common man. It takes no account of ,the portly presence of the potentates, goodly in girth'. It is a _ Constitution not meant for the ruler ,but the ranker, the tramp of the road, The slave with the sack on his shoulders pricked on with the goad, The man with too weighty a burden, too weary.a load." "
. (N.A. Palkhivala, Our Constitution Defaced and Defiled, 'MacMillan, 1974, p. 29) fam in entire agreement with the aforesaid interpretation. of the Constitution given by this Court and also by the eminent jurist. '
40. In this context, another aspect is of some relevance and it was pointed out' by. Hidayatullah, J. as His Lordship then was, in Naresh Shridhar Mirajkar v. State of 6 ; O.A/1295/2020 & Ors
- Maharashtra [AIR 1967 SC 1] . In a minority judgment, His Lordship held that the judiciary is 'a State within the meaning of Article 12. (See AIR paras 100, 101 at pp. 28 and 29 of the
- Report.) This minority view of His Lordship was endorsed by Mathew, J. in Kesavananda Bharati [(1973) 4 SCC 225 : AIR 1973 SC 1461] (at SCC p. 877, para 1703 : AIR p. 1949, para 1717 of the Report) and it was held that the State under Article 12 would include the judiciary. This was again reiterated by Mathew, J. in the Constitution Bench judgment in State of Kerela -Verus- N.M. Thomas [(1976) 2 SCC 310 : 1976 SCC (L&S} 227 : AIR 1976 SC 490] where Mathew, J.'s view was the majority view, though given separately. At SCC p. 343, para 64: AIR p. 515, para 89 of the Report, His Lordship held that under Article 12, "State" would include "Court".
41. In view of such an authoritative pronouncement the definition of the State under Article "12 encompass the judiciary and in Kesavananda case [(1973) 4 SCC 225 : AIR 1973 SC 1461]
- it was held that "judicial process" is also "State action". (SCC p. 877, para 1703 : AIR p. 1949, para 1717) 42 That being the legal position, under Article 38 of the Constitution, a duty is cast on the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows: "38, State to secure a social order for the promotion of welfare of the people.--(1) The State shall strive to promote the welfare of the people by-.securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life."
_1 follow the above principles and cannot support the action of the employer/writ petitioner in terminating the.service by merely giving a notice." TO Respondents on the contrary would aver that "three posts of Substitute TADK to ACMS(IC)K.G. Hospital, ACMS(A)/SrDMO(), ACMS(G)/Sr-DMO(G), were provided from the current available posts to medical department vide Office Memorandum No. GMA/GS/419 Pt. XVII, dated-13.04.2019."
"That, "Sri G. Lokeshwar Rao got engaged as Substitute TADK on
-. 23.10.2019 ander Sri Subimal Gupta, ACMS/A/ CLW against 03 (three)
- posts vide Office Memorandum dated-13.04.2019."
- That, "the order dated-18.04.2019 appears to be erroneous as only | officer/ poste with administrative responsibilities are provided with TADK faculties, which is rectified vide Office Memorandum No. GMA/GS/419 Pt. XVII, dated-09.12.2019. Accordingly the services of attached TADK catinot be allowed to be continued. The services of Sri G. Lokeshwar Rao got terminated vide Office Order No. GMA/MR/CON/ 157 Pt/IX(SQ), dated 10.12.2019, on the basis of Office Memorandum No. GMA/GS/419 Pt. 7 | 0.4/1295/2020 & Ors XVII, dated-09.12.2019, where the Office: Memorandum 'of even No. dated | 13.04.2019 is withdrawn." | | That, "substitutes are engaged where regularly recruited staff is not - available. Policy has been laid so that in 'case there is inordinate delay In : making regularly sélected 'candidate available, the substitutes can be "
regularised. In present legal position, only after 120 days the substitutes acquire temporary status and their screening is done after 3 years. Before the relevant date of acquiring temporary: status, the substitutes are hable | for termination." ~ oO That, "at the time of engagement, Sri.G. Lokeshwar Rao as well as Ori Subimal Gupta (engaging officer) agreed the above point and has ips filled and signed Annexure B' (copy enclosed) where at point No. 4, they declared that "I also agree thai I will be on probation as substitute Bungalow Peon for a period of 3 years and during the period of. probation, my services can be terminated forthwith any time without assigning any reason."
That, "after engagement, subject to many riders, including but not limited passage of certain period of time, the substitute becomes entitled for screening, after which only they can be regularized and a candidate who: is not, vegularly selected cannot have any objection . against termination, that too when the is in accordance with the policy and terms they agreed upon."
8. We have considered the rival contentions and perused records. :
9. It is discernible that the termination of service of the present applicant has not been approved by the G.M. who had approved his engagement. 'The termination is. therefore bad and without authority: He'was simply shown the door, without assigning any reason. His representation was not 8 - : 0.4/1295/2020 & Ors . considered with due application of mind. If the officer With whom he was attached was not entitled to a Bungalow Peon (TADK), his service could . have been offered to other. eligible officers. The applicant, who belongs to the weaker section of the society did not deserve the treatment that was meted out to him.
10. Therefore, in view of the pleadings and discussions, having noted.the implication of the decisions supra, and having held the: termination as bad and without authority, we would quash the termination order with direction to. consider accommodating all the applicants in the O.As, against. suitable vacancies.
All the O.As. accordingly stand disposed of. No costs. (Nandita: Chatterjee) . (Bidisha Banerjée) Member 'A) . Member (J) ss