Karnataka High Court
Rajendra Kumar Lakwal vs The General Manager on 11 August, 2017
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WP No.6912/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST 2017
PRESENT
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
WRIT PETITION NO. 6912/2017 (S-CAT)
BETWEEN:
RAJENDRA KUMAR LAKWAL
AGED ABOUT 29 YEARS
S/O SHRI OM PRAKASH LAKWAL
EX SUBSTITUTE EMERGENCY
PEON/RWF/YNK, R/O KHA-15
AMBEDKAR COLONY
KUNHARI, KOTA
RAJASTHAN-324 008 ...PETITIONER
(BY SRI THOMAS.C.C., ADVOCATE)
AND:
1. THE GENERAL MANAGER
RAIL WHEEL FACTORY
YELAHANKA
BANGALORE-560 064
2. THE CHIEF PERSONNEL OFFICER
O/O THE GENERAL MANAGER
RAIL WHEEL FACTORY
YELAHANKA
BANGALORE-560 064
3. THE ASST. PERSONNEL OFFICER
O/O THE GENERAL MANAGER
RAIL WHEEL FACTORY
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WP No.6912/2017
YELAHANKA
BANGALORE-560 064
4. SHRI S.BAIRVA
DY.CME/AA/RWF
O/O THE GENERAL MANAGER
RAIL WHEEL FACTORY
YELAHANKA
BANGALORE-560 064 ...RESPONDENTS
(BY SRI N.S.SANJAY GOWDA, ADVOCATE FOR R1 TO R3
R4 IS SERVED AND UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-S THE
ORDER DATED:07.12.2016 IN O.A.NO.446/2016 PASSED BY THE
HON'BLE CAT/BANGALORE, QUASH ANNEXURE-P THE
TERMINATION NOTICE DTD:02.09.2015 ISSUED BY
APO/RWF/YNK.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 29.06.2017 FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT THIS DAY, K.S.MUDAGAL J., MADE THE
FOLLOWING:
ORDER
K.S.MUDAGAL, J.:
The sole question involved in this case is, "whether the termination of a substitute emergency peon conferred with the temporary status in the Railway Department, from service shall necessarily be preceded by a disciplinary inquiry?"
2. The petitioner was appointed as a substitute emergency peon/Staff No.061815 attached to one -3- WP No.6912/2017 Sri Bairav, Senior Electronic Data Processing Manager/Rail Wheel Factory/Yelahanka, vide order dated 06.03.2014 at Annexure "A" for 4 months. He was granted temporary status with effect from 15.06.2014 vide order at Annexure "B".
3. The second respondent issued the notice dated 28.07.2015 to the petitioner to show cause on or before 26.08.2015 as to why his services should not be terminated on the ground of unsatisfactory performance. For that the petitioner issued reply dated 18.08.2015 which was received in the Office of the second respondent on 27.08.2015 i.e., after the stipulated period. Thereafter, vide order dated 02.09.2015 at Annexure "N", the petitioner is terminated from the service.
4. The petitioner challenged the said order of termination before the Central Administrative Tribunal, Bangalore Bench (hereinafter referred to as "Tribunal" for brevity) in O.A.No.446/2015. The Tribunal vide order dated 07.12.2016 dismissed the application. The Tribunal has held that for termination of the temporary employee, -4- WP No.6912/2017 holding of a disciplinary inquiry is not required and moreover, under show cause notice the petitioner is given opportunity of hearing.
5. The petitioner's counsel contends that as per Indian Railway Establishment Manual Volume II paragraph 2005, 'casual labour' who are treated as 'temporary employees' are entitled to the benefit of D&A Rules, therefore, the petitioner could not have been terminated without conducting the disciplinary inquiry. He relies upon the unreported Judgment of Delhi High Court in SHRI LAKHI RAM vs UNION OF INDIA (UOI) AND ORS. in W.P.(C) No.6070/2006 decided on 05.10.2007.
6. Annexure 'B' - the Memorandum dated 01.07.2014 under which the petitioner is granted temporary status states that petitioner is eligible for the privileges and benefits as admissible to temporary Railway Servants and his further continuation beyond 4 months/ temporary status is subject to the certification by Sr. EDPM about his satisfactory performance of duty and -5- WP No.6912/2017 his recommendation for continuation of his service on completion of every six months.
7. Paragraph 2005 of Indian Railway Establishment Manual Volume II reads as follows:
2005. Entitlements and Privileges
admissible to Casual Labour who are
treated as temporary (i.e. given
temporary status) after the completion of 120 days or 360 days of continuous employment (as the case may be).
(a)Casual labour treated as temporary are entitled to the rights and benefits admissible to temporary railway servants as laid down in 'Chapter XX III' of this Manual. The rights and privileges admissible to such labour also include the benefit of D & A Rules. (Emphasis supplied)
8. Therefore, we have to advert to the D & A Rules to ascertain the right of the petitioner to demand a disciplinary inquiry. Rule 3 of The Railway Servants (Discipline & Appeal) Rules, 1968 relates to its applicability.
The relevant portion of which reads as follows:
"Rule 3: Application(1) These rules shall apply to every railway servant but shall not apply to-
(a)...
(b)....
(c) Any person in casual employment; and
(d)......
(2)....-6- WP No.6912/2017
9. Section 2(1)(e) of the D & A Rules defines as under:
"Railway Servant" means a Railway servant as defined in clause 43 of Rule 103 of Volume I of the Indian Railway Establishment Code (Fifth Edition - 1985) and includes any such Railway Servant on foreign service or whose services are temporarily placed at the disposal of any other department of the Central Government or a State Government or a local or other authority; (Emphasis supplied)
10. Rule 103 (43) of Indian Railway Establishment Code, Volume - 1 (1985 Edition) defines "Railway Servant"
as follows:
"43: Railway Servant means a person who is a member of a service holds a post under the administrative control of the Railway Board. It also includes a person who is holding a post of chairman, financial commissioner or a member of a Railway Board. Persons lent from a service or post which is not under the administrative control of Railway Board to a service or post which is under the administrative control do not come within the scope of this definition. The term excludes 'Casual Labour' (Emphasis supplied)
11. Chapter XV of the Indian Railway Establishment Code, Volume - I governs the terms and -7- WP No.6912/2017 conditions applicable to the Railway Servants and substitutes in temporary service. Paragraph 1501(i) defines the 'temporary railway servant' as follows:
A "temporary railway servant" means a railway servant without a lien on a permanent post on a Railway or any other administration or office under the Railway Board. The term does not include "casual labour", including 'casual labour with temporary status', a "contract" or "part-time" employee or an "apprentice". (Emphasis supplied).
12. Paragraph 1502 of the said Chapter deals with termination of service and periods of notice:
(1) When a person without a lien on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of the termination of his service, if such termination is due to the expiry of the sanction of the post which he holds or the expiry of the officiating vacancy, or to his compulsory retirement due to mental or physical incapacity or to his removal or dismissal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution of India. If the termination of his service is due to some other cause, he shall be entitled to one month's notice provided he was engaged on a contract or a definite period and the contract does not provide for any other period of notice; and to a notice of 14 days if he was not engaged on a contract.
Temporary railway servants with over three years continuous service shall, however, he entitled to a month's notice. The periods of notice specified above shall apply on either side., and steps should be taken to bring this condition to the notice of the Railway Servants". (Emphasis supplied) -8- WP No.6912/2017
13. The reading of the above provisions makes it clear that being a Substitute Emergency Peon of temporary status, petitioner is not entitled to claim disciplinary inquiry for discharge simplicitor. Petitioner was served with a show cause notice and he has issued the reply to the same. Being not satisfied with his reply the termination order is passed.
14. The termination order reveals that petitioner was terminated on the sole ground that he is unsuitable to hold the post. Termination Order contains only the substance of the notice, the reply of the petitioner to the same (where he has made allegations against his immediate higher officer), the remarks of the said higher officer on such reply of the petitioner. The termination order has not attached any stigma to the petitioner.
15. In KAZIA MOHAMMED MUZZAMMIL VS STATE OF KARNATAKA AND ANOTHER (2010) 8 SCC 155 Supreme Court in para 9 of the judgment has held that until and unless it is shown that the termination order of a probationer from service is stigmatic and intended to over -9- WP No.6912/2017 reach the process of law and rules, there is no occasion for it to interfere with such order.
16. Having regard to the rules and the judgment of the Supreme Court referred to supra, this Court does not find any grounds warranting interference in the impugned order. Therefore, petition is dismissed.
Sd/-
JUDGE Sd/-
JUDGE brn