Central Administrative Tribunal - Cuttack
Nityananda Barik vs South Eastern Railway on 2 January, 2024
1 OA 260/00 501 of 2011 & RA No. 05/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA 260/00501 of 2011
(RA No. 05/2014)
Reserved on: 21.12.2023 Pronounced on : 02.01.2024
CORAM:
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
HON'BLE MR. RAJNISH KUMAR RAI, MEMBER (J)
Nityananda Barik, aged about 30 years, Son of Sri
Pranakrushna Barik, Substitute Bunglow Peon, Lascar,
attached to Mr. D.P.Dash, Dy. Chief Engineer/ C & D/ Integral
Coach Factory/ Southern Railway, permanent resident of
Vill.- Damadorpur, PO- Kumbhiragadia, P.S./Dist. Jajpur.
......Applicant
VERSUS
1. Union of India, represented through the General Manager,
Southern Railway, Integral Coach Factory, Administrative
Building, Chhenai- 600038, Tamilnadu.
2. Deputy Chief Electrical Engineer (C & D), Integral Coach
Factory, Southern Railway, Nungambakkam, Chhenai-
600038, Tamilnadu.
3. Asst. Personnel Officer/G, Integral Coach Factory,
Southern Railway, Nungambakkam, Chhenai- 600038,
Tamilnadu.
......Respondents
For the applicant : Mr. N.R.Routray, Counsel
For the respondents : Mr. G.R.Verma, Counsel
2 OA 260/00 501 of 2011 & RA No. 05/2014
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The Applicant filed this Original Application under Section 19 of Administrative Tribunal Act, 1985 inter alia seeking with the following prayer as under:
"(i) To quash the order dtd. 8.11.2010 under annexure-A/6.
(ii) To direct the respondents to allow him to work against his post or provide alternative employment as per Annexure-A/1.
And pass any other order................."
2. Respondents filed counter contesting to the case of the applicant and opposing the prayer made in the O.A. The applicant has also filed rejoinder to the same. This Tribunal vide order dated 22.04.2014 dismissed the Original Application. The applicant has preferred Review Application No.5 of 2014 which was also considered and disposed of by the Tribunal on 11.08.2014. Being aggrieved the aforesaid orders of this Tribunal, the Applicant preferred W.P.(C) No.16659/2014 before the Hon'ble High Court of Orissa. The Hon'ble High Court of Orissa dated 05.05.2022 quashed the order of this Tribunal dated 22.04.2014 and 11.08.2014 and remitted the matter to this Tribunal for hearing afresh 3 OA 260/00 501 of 2011 & RA No. 05/2014 by giving opportunity to all parties. Accordingly, the O.A. was restored to file and R.A. No.5 is accordingly disposed of.
3. Heard learned counsel for both sides in O.A. and perused the records.
4. According to learned counsel for the Applicant opposite party no.3-Assistant Personnel Officer, Integral Coach Factory, Chennai in the State of Tamilnadu issued an order bearing No.PB/RR/39/Sub. Bung Lascar dated 12.02.2009 appointing the Applicant as Substitute Bungalow Lascar in PB Rs.5200-20,200/- with G.P. of Rs. 1800/-. Such offer of appointment was purely temporary for a term of four months subject to fulfillment of conditions stipulated in the order itself. At Para- 10 of the order, the Applicant was directed to report before Res. No. 3 immediately at 9.30 hours along with certain documents for verification. The Applicant complied the terms and conditions of the order dated 12.02.2009, for which finally, on 21.02.2009, Res.3 issued order No. PB/S5/274 and accordingly the Applicant was attached to Mr. D.P. Dash, Deputy Chief Electrical Engineer, C & D, Integral Coach Factory, Southern Railway, Chennai, in the same pay band as had been provided in the offer of appointment. The employment number of the Applicant was 843497.
4 OA 260/00 501 of 2011 & RA No. 05/2014 Before issuance of order of appointment, the Applicant was working in the house/bungalow of Mr. D.P.Dash-Res.No.2 since long, for which his officer took the initiative for his appointment as Substitute Bungalow Lascar.
5.1. Consequent upon his joining, the Applicant received the salary with effect from March, 2009. But a dispute arose between the Applicant and his employer Res. No.3 owing to demand of some portion of the salary and ultimately in a blank paper signature was obtained from the Applicant which was converted into an emergency leave application for a period of 10 days, though during the said period he had discharged the duty in the bungalow for his officer. He was denied to sign the muster roll and ultimately opposite party no.2 refused to report his presence, which compelled the Applicant to come back to his native place. 5.2. Thereafter, the Applicant submitted a representation to Respondent No.1, on 14.12.2010, ventilating his grievance for necessary action, but no order was communicated in response to such representation. Thereby, he submitted a reminder on 04.01.2011. In response to the same, the Applicant received order No. Dy. CEE/I/DPD dated 30.03.2011 by which, the order dated 08.11.2010 passed by 5 OA 260/00 501 of 2011 & RA No. 05/2014 Respondent No. 3 was communicated to him in his permanent address indicating that Respondent No. 3 accepted the resignation submitted by the Applicant and the reason had been indicated to be domestic. The order was effective from 09.11.2010.
5.3. It is submitted that the Applicant on receipt of the order dated 30.03.2011, along with the order passed on 08.11.2010, submitted his appeal to Respondent 1 by speed post, taking a specific plea that his officer-Respondent No. 3 had taken his signature in a blank paper to use the same as a leave application, but the same was used by Respondent No.2 for the purpose of his resignation to deprive him of his service. Respondent No. 2 in his order dated 30.03.2011 clarified that the Applicant had left his place of work on 29.10.2010 and thereafter he has not returned. As a consequence thereof, he was terminated from service with effect from 08.11.2010, pursuant to the so called resignation submitted by him. Even though the Applicant had submitted his appeal on 29.04.2011, since no communication was received, he preferred O.A. No. 501 of 2011 on 24.07.2011 under Section 19 of the Administrative Tribunals Act, 1985 before this Bench seeking to quash the order dated 08.11.2010 and to direct the Respondents to allow him to work against 6 OA 260/00 501 of 2011 & RA No. 05/2014 his post or provide alternative employment. The Applicant had also prayed for interim relief, seeking direction to opposite party no.1 to dispose of the representation/appeal.
5.4. However, learned counsel for the Applicant, in course of hearing learned counsel for the applicant disputed/disowned the signature of the applicant appeared on the resignation letter and wanted this Tribunal to examine the same because the Respondent-Department did not pay any heed on the said stand by way of obtaining expert/GEQD opinion on the same. The order dated 08.11.2010 accepting the resignation was unreasoned one has been taken as a ground during course of argument. It is submitted that the applicant is now out of any employment and has been moving from pillar to post with begging bowls for sustenance of livelihood for such action/inaction of the Respondent-Department.
6. On the other hand, placing reliance on the submissions made in the counter, learned counsel for the Respondents have submitted that it is incorrect to say that the signature appeared on the resignation letter was not of the Applicant. It has been submitted that due to his unauthorized absence from duty from 5th June, 2010 to 4th August, 2010 disciplinary proceedings were initiated against the applicant. While the matter stood 7 OA 260/00 501 of 2011 & RA No. 05/2014 thus, on 29th October, 2010 the applicant handed over his resignation letter at the officer's residence and left his duty. His resignation was duly accepted by the competent authority and communicated to him. Applicant submitted representation as also legal notice allegation and after thought stand which were duly considered and found to be false fabricated and afterthought. Accordingly it has been submitted that since there was no injustice caused to the applicant in the decision making process of the matter, this OA is liable to be dismissed.
7. In compliance of the orders of this Tribunal, the Respondent- Department filed Xerox copies of records. After giving due consideration to the arguments advanced by respective parties we have the pleadings, materials placed in support thereof. We have also gone through the Xerox copies of records produced by the Respondents' Counsel in compliance of the order of this Tribunal. Relevant portion of the order of the Hon'ble High Court of Orissa is re produced herein below:
"The contention raised by learned counsel for the petitioner is that opposite party no.2 had obtained a blank paper signature from the petitioner by coercing him to be treated as leave application, but ultimately the same was utilized as a letter of resignation and on that basis, the said letter was accepted and the petitioner was terminated from service. When the counter affidavit was filed by the opposite parties, on receiving the notice, the tampering of signature of the
8 OA 260/00 501 of 2011 & RA No. 05/2014 petitioner, vide letter dated 29.10.2010, having been alleged, in paragraph-2 (C) of the counter affidavit it was stated that on 29.10.2010 the petitioner had handed over his resignation letter, on that basis when the matter was listed on 24.07.2013, the tribunal passed the order directing the opposite parties 1 to 3 to obtain the records dealing with the appointment and acceptance of resignation of the petitioner and keep the records with him for the perusal on the next date of hearing. Neither such letter was produced nor verified. The same had also not been confronted to the petitioner at the time of hearing. The tribunal, without complying such order dated 24.07.2013, kept the order reserved on 11.09.2013 and delivered the same on 22.04.2014 after long lapse of seven months, contrary to the statutory rules governing the field. Due to non-production of record, as directed vide order dated 24.07.2013, the tribunal would have taken an adverse view against the opposite parties, but without any application of mind, the order impugned was passed on 22.04.2014 after long lapse of keeping the order reserve on 11.09.2013. On perusal of the original records, the allegation made by learned counsel for the petitioner pertaining to issue no. (ii) is found to be correct. Therefore, the order impugned cannot sustain in the eye of law. The issue no.(ii) is also answered in favour of the petitioner.
9. Issue No. (iii). Whether the tribunal is justified by treating the signature of the petitioner on blank paper, which was utilized by the opposite parties as a resignation letter, as alleged?
The allegation is made by the petitioner that his signature on blank paper was taken from him on coercion by opposite party no.2, to whom he was attached, to submit such letter as leave application, but, instead of doing so, the same had been utilized by opposite party no.2 as the letter of resignation, as he could not satisfy the demand made by him. Thereby, the blank paper containing signature of the petitioner was manipulated as letter of resignation and utilized against him, as a consequence of which he was 9 OA 260/00 501 of 2011 & RA No. 05/2014 terminated from service. Such a contention of the petitioner being a disputed one, this Court is not inclined to give any finding on the same. Rather, it is incumbent upon the petitioner to establish the same before the appropriate forum, if he is so advised. Thereby, this Court refrains from giving any observation on such plea advanced before this Court for adjudication of this case. Issue no.(iii) is answered accordingly."
8. We find that the plea that the signature appeared in the so called resignation letter is not of the applicant does not stand to scrutiny because throughout it is the case of the applicant that he has signed in blank paper for the purpose of leave, which was utilized as his resignation. However, it is seen that on the basis of the positive stand of the applicant in the pleadings so also before the Hon'ble High Court that he signed on blank paper for the purpose of grant of leave but the same was typed and manipulated as his resignation. The Hon'ble High Court of Orissa took note of the same and was pleased to hold that "Such a contention of the petitioner being a disputed one, this Court is not inclined to give any finding on the same. Rather, it is incumbent upon the petitioner to establish the same before the appropriate forum, if he is so advised."
9. In view of the discussions made above, this Tribunal is not inclined, at this stage, to quash the order dtd. 8.11.2010 (A/6) and grant 10 OA 260/00 501 of 2011 & RA No. 05/2014 the other prayer made by the applicant. However, this Tribunal is of the considered view that the disputed facts of the matter can be resolved by way of detailed enquiry to be caused by the Respondent-Department after giving due opportunity to the Applicant and the authority concerned, who were in the helm of affairs and, accordingly, it is ordered as under:
(i) Respondent No.1 is directed to cause an inquiry by himself or through any responsible officer to find out as to how far the allegation of the applicant that his signature on blank paper was taken on coercion by Respondent No.2, to whom he was attached, for the purpose of leave but instead the said signed on blank paper had been utilized by Respondent No. 2 as his letter of resignation.
(ii) During the inquiry, the applicant shall be allowed due opportunity to put forth his grievance.
(iii) The entire drill shall be completed within a period of 180 days from the date of receipt of a copy of this order.
11 OA 260/00 501 of 2011 & RA No. 05/2014
(iv) In the event, the inquiry is done other than the respondent No.1, upon receipt of the report, the respondent No.1 to consider the same and intimate the decision to the applicant in a well reasoned/speaking order within another period of 15 days from the date of receipt of the report.
10. With the aforesaid observations and directions, the OA stands disposed leaving the parties to bear their own costs.
11. The Xerox copy of the records, kept with the Court Officer, be returned to the Ld. Sr. Counsel for the respondents with due acknowledgement.
(Rajnish Kumar Rai) (Pramod Kumar Das) Member (Judl.) Member (Admn.) RK/PS