Central Administrative Tribunal - Allahabad
Pankaj Kumar Sharma Son Of Sri Preetam ... vs Union Of India on 16 May, 2014
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
*********
Original Application No. 499 of 2011
Allahabad this the 16th day of May, 2014
Honble Mr. Justice S.S. Tiwari, Member-J
Honble Ms. B. Bhamathi, Member-A
Pankaj Kumar Sharma Son of Sri Preetam Chandra C/o Mahesh Lal Residence of Village Type III, 318-A Subedarganj New Railway Colony, Religion Allahabad.
Applicant
By Advocates: Sri S.K. Chaturvedi
Sri J.L. Maurya
Vs.
1. Union of India, Through Central Manager, North Central Railway Head Office, Subedarganj, Allahabad.
2. Divisional Railway Manager (Personal) Head Office Subedarganj, North Central Railway, Allahabad.
3. Dy. Chief Commercial Manager (G) North Central Railway, Subedarganj, Headquarter, Allahabad.
4. Sr. Personal Officer (H.Q.), North Central Railway, Subedarganj, Allahabad.
Respondents
By Advocate: Shri Rajnish Kumar Rai
(Reserved on 30th April, 2014)
O R D E R
Delivered by Honble Mr. Justice S.S. Tiwari, Member-J This O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following relief(s): -
(1) That impugned order of termination dated 26.10.2010 (Annexure No. 1 to the Compilation No. 1) be quashed and the applicant be re-instated on his original post with full wages and all consequential benefits;
(2) That the petitioner/applicant be treated in continuous service and therefore his salary be awarded treating him in service;
(3) To allow this petition with full back wages with all the service benefit;
(4) To award cost of petition.
2. The brief facts giving rise to this O.A. are as follows: -
The applicant- Pankaj Kumar was appointed on the post of Bungalow Peon at North Central Railway, Agra on the basis of Office Order No. 797 dated 01.11.2006 vide appointment letter dated 19.01.2007 in the pay scale of `2550-3200 (RSP) as a Substitute and, he was posted with Shri P.K. Pandey, Deputy Chief Commercial Manager (G), North Central Railway at Agra (in the O.A. name of Shri P.K. Pandey has wrongly been mentioned as Shri R.K. Pandey). Subsequently, applicant was given temporary status in service vide order dated 18.06.2007. Later on, on transfer of Shri P.K. Pandey from Agra to Allahabad, applicant was also transferred from Agra to Allahabad. Shri P.K. Pandey had also issued a good moral character certificate dated 01.08.2008 to the applicant.
3. All of a sudden, Shri P.K. Pandey, for the reasons best known to him, directed the applicant to write down an excuse letter for his so called unauthorized absence and the applicant under pressure had to put his signature over the excuse letter. On 26.10.2010, services of the applicant were terminated vide impugned order in utter violation of Railway Servants (Discipline and Appeal) Rules, 1968 without giving any show cause notice or without serving any charge sheet upon the applicant and without giving any opportunity to explain the same. Hence, this O.A. has been filed mainly on the grounds that the applicant was appointed on a substantive/permanent post and was also given a temporary status as per rules. He was continuing in service without any break for more than three years. The applicant has got a credit of 120 days leave in his leave account. The termination order was passed in utter disregard to the Railway Servants (Discipline and Appeal) Rules, 1968 without holding any disciplinary inquiry and without giving any show cause notice and without serving any charge sheet upon the applicant. No disciplinary proceedings were drawn against the applicant before termination of his services. Hence, the order of termination is bad in law.
4. The respondents have filed the Counter Reply alleging that the services of applicant have been terminated on the ground of long illegal absence from duty and for not following the instructions of the Officer with whom he was posted. In terms of Office letter No. 797-E/Appointment/B. Peon/AGC/NCR dated 12.01.2007, Sri Pankaj Kumar was engaged as substitute Bungalow Peon in pay band-1 `4440-7440/- by AGC Division vide APO/AGCs letter No. 797-E/ Khalasi/Agra/EO dated 19.01.2007 and attached with Senior DCM/AGC. The applicant was appointed in addition to other terms and conditions with following conditions also that his engagement was temporary and was only upto 31.03.2007, if his work was found unsatisfactory at any time his services could be terminated without giving any notice. His engagement depends upon his character and if his working is found satisfactory and lastly his service was transferable with present Sr. DCM/AGC. It is true that after completion of 120 days of continuous service, applicant was granted temporary status vide letter No. 797-E/B. Peon/EO dated 18.06.2007 and on transfer of Shri P.K. Pandey, Sr. DCM/ AGC, Agra to Headquarters Office at Allahabad as a Deputy CCM/G, applicant was also transferred along with him as Bungalow Peon. During the period of February, 2009 to January, 2010, applicant was absent from his duty for 156 days and in consequece warning letters dated 02.01.2009, 21.01.2009 and 04.03.2009 were issued to the applicant by the aforesaid Officer Shri P.K. Pandey which were received by the applicant. Again a show cause notice was served upon the applicant vide order dated 05.10.2009 by way of warning letter dated 06.10.2009 for his misconduct and absence from duty. The applicant replied the letter and sought unconditional apology for the same. The applicant did not mend his ways and he was again absent from his duty for a period of 86 days during February, 2010 to September, 2010. In pursuance of aforesaid notice and warning letters, the case of applicant was referred to the General Manager (P), North Central Railway, Allahabad for termination of services of applicant with immediate effect by Deputy CCM/UTS vide letter dated 09.03.2010. Thereafter, services of the applicant were terminated vide order dated 26.10.2010 with immediate effect. Considering the long absence of applicant, O.A. deserves to be dismissed.
5. Rejoinder Affidavit has been filed by the applicant mainly reiterating the earlier stand taken by him in the O.A. particularly alleging that the applicant never absented himself from duty. He has wrongly been shown absent from duty. His attendance is not signed by him as there is no provision for signing the attendance register. It depends on sole discretion of the Officer under whom the applicant/TADK works. The termination order is bad in the eye of law as it is without any disciplinary action against the applicant. The version of respondents that the temporary status of applicant will not confer any right on the applicant for absorption as permanent employee is incorrect as under the relevant policy itself after completion of three years of service, an incumbent becomes entitled to be scrutinized for absorption on permanent post. The applicant has already put in more than three years service. Since his appointment was on a permanent substantive vacancy, it could not be abolished and he could not be terminated by the impugned order. It is further averred by the applicant that the applicant was temporary employee, stigma was attached with the termination order, without disciplinary departmental proceedings, termination of applicants service is against the provisions contained under Articles 14, 16, 21 and 311 of the Constitution of India.
6. In addition to pleadings, the applicant has also placed reliance on documentary evidence which is annexure A-1 to annexure A-11 on record and some documentary evidence in the form of leave account of the applicant has also been filed as annexure RA-1 with the Rejoinder Affidavit, filed by the applicant.
7. On the other hand, the respondents have also placed reliance on documentary evidence, which is filed on record as annexure R-1 to annexure R-6 on record.
8. We have heard the learned counsel for the parties and perused the documents on record.
9. The main contention of learned counsel for the applicant is that the appointment of applicant was made on a substantive/permanent post after following due process of selection. His services could not be terminated in utter disregard of the Railway Servants (Discipline and Appeal) Rules, 1968 without holding any departmental inquiry, without giving him any show cause notice and without serving any charge sheet upon him and without giving any opportunity to the applicant to explain the charges levelled against him. It has also been submitted that the applicant was a temporary employee, stigma has been attached with the termination order without taking recourse of disciplinary/ departmental proceedings. The termination order is against the constitutional provisions. It is also submitted that on the basis of leave account of the applicant, filed on record, it can be presumed that the applicant had 120 days leave in his leave account.
10. On the other hand, learned counsel for the respondents has contended that the applicant was appointed as a substitute and not on substantive post. He had been absent for a long time from his duty. The main condition of his service was satisfactory-duty which he failed to perform and considering his terms and conditions of appointment, there was no need to take recourse to disciplinary proceedings before passing any termination order of services of the applicant. Averment has also been made towards the contention of respondents in para-10 of the Counter Reply, according to which as per policy of TADK, initial appointment of the applicant was for a period of three months and after completion of this initial period, extension of services of applicant was to be approved by the ADRM of that Division/CWMs in Workshop and CPO/A in Headquarters Office in the spell of six months each in respect of satisfactory report from the concerned officer. The engagement of TADK was on contractual basis and the services of TADK shall be liable to be terminated at any time without giving any notice. The temporary status will be granted on completion of 120 days of non-fortuitous service and temporary status will not confer any right on the applicant for absorption against the regular post. The TADK will become liable for screening on completion of three years non-fortuitous service. During the period i.e. February, 2009 to January, 2010, applicant was absent from duty for 156 days. Consequent to it, warning letters dated 02.01.2009, 21.01.2009 and 04.03.2009 were issued to him which is evident from perusal of annexure R-2, filed by the respondents. The applicant was again absent from duty from 05.10.2009, the applicant was served with a show cause notice/warning letter on 06.10.2009 for his misconduct and absence from duty. The applicant himself tendered an unconditional apology for the same in pursuance of aforesaid show cause notice. But in spite of all this, applicant again absented himself from duty for a period of 86 days during the months of February, 2010 to September, 2010 and his case was referred to the General Manager (P), North Central Railway, Allahabad for termination of his services. Our attention has also been drawn towards the compilation of the orders issued from time to time by the North Central Railway regarding the appointment of Telephone Attendants cum Dak Courier, which has been formed into the policy later on. Relevant portion of the annexure R-1 is reproduced below: -
The initial appointment of TADK will be for a period of 3 months. After this initial period the extension of service of TADK will be approved in spells of 6 months each by ADRMs on the Divisions/CWMs in Workshops and CPO/A in Headquarters office, on receipt of satisfactory report from the concerned officers. The engagement of TADK will be on contractual basis and the services of TADK shall be liable to be terminated any time without giving any notice. Similarly, para-7 of the aforesaid policy provides, as under: -
Temporary status will be granted on completion of 120 days service excluding non working/absent/without pay period and temporary status will not confer any right on them for absorption against regular post. TADKs will become eligible for screening on completion of three years service excluding non working/absent/without pay period. On the basis of aforesaid policy, it has been submitted by the respondents counsel that even after conferment of temporary status on the applicant, he could not be automatically absorbed on a regular post. The conferment of temporary status on the TADK was only for a limited purpose for his benefit. It is also apparent from the aforesaid policy that the engagement of TADK will be on contractual basis and the services of TADK shall be terminated at any time without giving any notice.
11. Learned counsel for the applicant could not show any document on record, filed by him, that the applicant was appointed as TADK after following any due process of selection for the post of TADK or there are any rules or regulations prescribed to be followed before appointment of TADK.
12. Similarly as regards the contention of the applicant that a stigma was attached to him by the impugned order and the departmental proceedings had to be taken before termination of his services. A perusal of the impugned order shows that the applicant has been given several warning letters and advised to perform his duty correctly and in a proper manner and to improve his working but no improvement was done in his working. His absence from the month of February, 2009 to January, 2010 for 156 days and from February, 2010 to September, 2010 for 86 days i.e. a total of 242 days unauthorized absence has been mentioned. It is also mentioned that some times he also used disrespectful language and even after giving repeated warnings, he could not improve himself which shows that he does not want to improve himself. Accordingly, he was not found fit for the duty of TADK and accordingly his services were terminated. The aforesaid order nowhere says that any kind of stigma has been imputed to the applicant. Emphasis has been laid only on his unauthorized absence and use of disrespectful language to the officer with whom he was attached. It does not mean that any stigma has been imposed on the applicant.
13. Learned counsel for the applicant has placed reliance on the following case laws in support of his contention: -
(i) Order passed by the CAT, Allahabad Bench on 06.01.2006 in O.A. No. 1080 of 2003 Sunil Kumar vs. UOI & Others;
(ii) Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others (1999) 3 Supreme Court Cases 60;
(iii) Shri Lakhi Ram vs. UOI & Others, decided on 05.01.2007, by the Honble High Court of Delhi in Writ Petition (C) No. 6070 of 2006;
And
(iv) U.O.I. vs. Dharmender Kumar Yadav, decided on 08.03.2006 by the Honble High Court of Delhi in Writ Petition (C) No. 3263/2006 and CM 2828-29/2006. We have respectfully gone through the aforesaid case laws cited by the applicant in support of his contentions.
As regards the Order passed by the Honble Division Bench of Central Administrative Tribunal, Allahabad in the case of Sunil Kumar (supra), the beginning paragraph itself shows that the following observation was made against the applicant in the impugned order retention of the applicant in the unit shall be detrimental to public interest. On the basis of which, the Honble Bench concluded that this sentence definitely caused stigma against the applicant. In the present case before us, no such stigmatic sentence has been uttered nor any stigmatic word has been used against the applicant, so the aforesaid case law is distinguishable to the facts and circumstances of the present case.
Similarly the facts and circumstances in the case of Dipti Prakash Banerjee (supra) are also quite distinguishable from the present one. It was a case of probationer in which several observations were made by the employer from time to time which is not the circumstance in the present case. Accordingly, this case law is distinguishable from the present one.
Similarly, the other cases of Shri Lakhi Ram and Dharmender Kumar Yadav (supra) have also got distinguishable facts and circumstances which are not applicable to the present case. The applicant cannot get any benefit of the observations made by the Honble Courts in these respective cases.
14. On the other hand, the respondents counsel has placed reliance on the Order passed by the Honble Principal Bench in O.A. No. 1833 of 2010 in the case of Ms. Madhuri vs. Union of India and others, decided on 09.11.2011 by the Honble coordinate Bench of the Tribunal in which almost similar facts were involved. It was also a case of TADK in which placing reliance on the decision of Full Bench of the Tribunal in the case of Shyam Sunder Vs. Union of India and others in O.A. No. 896 of 1995, three issues were framed, which are as under: -
(i) whether bungalow peons in Railways are Railways 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 whether their services could be dispensed with for unsatisfactory performance only after conducting a departmental enquiry. The question No. (iii), in particular, was relevant for consideration before the Honble Coordinate Bench and, it was answered as under: -
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. It was further observed that the termination of services of substitute bungalow peon/khalasi who has acquired temporary status is not bad or illegal for want of notice before termination.
The observation made by the Full Bench of this Tribunal was followed in the aforesaid case and it was again followed in O.A. No. 875 of 2013, decided on 13.09.2013 by the Division Bench of Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 875/2013 Uttam Kumar Tewari vs. Union of India and others.
15. Considering the facts and circumstances of the present case, we find ourselves in complete agreement with the observations made by the Honble Coordinate Bench of Central Administrative Tribunal, Principal Bench, New Delhi in the aforesaid case.
Thus, it is clear that any one who has got back door entry in service without following the prescribed procedure, cannot get any protection of law particularly regarding disciplinary proceedings.
16. The Honble Apex Court in the case of Secretary of State of Karnataka vs. Uma Devi (2006) 4 SCC page 1 has observed regarding legal rights and protections available to a contractual employee and about his future prospects, as follows: -
On a survey of Judgments of the Supreme Court on the point, the predominant view is seen to be that appointments made without following the due process or the rules for appointment did not confer any right on the appointees and that the court cannot direct their absorption or regularisation or re-engagement or making them permanent. Those decisions which run counter to the principles settled in this decision, or in which directions running counter to what has been held herein have been given, will stand denuded of their status as precedents. In the case of Uttam Kumar Tewari (supra), the Honble Coordinate Bench of C.A.T. has made the following observations: -
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 time 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 the Railways to grant them temporary status and regular appointment cannot be allowed.
17. Considering the facts and circumstances of the case, mentioned above, and considering the existing guidelines on the subject, we are of the considered view that the impugned order terminating the applicant from service is simple and non-stigmatic and same is legally tenable. Hence, O.A. is devoid of merit and it deserves to be dismissed. Accordingly, O.A. stands dismissed with no order as to cost.
(Ms. B. Bhamathi) {Justice S.S. Tiwari}
Member-A Member-J
/M.M
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