Central Administrative Tribunal - Jaipur
Sharwan S/O Shri Manohar Das vs Union Of India Through General Manager on 21 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 157/2012
DATE OF ORDER: 21.08.2013
CORAM
HONBLE MR. ANIL KUMAR, ADMINISTRATIVE MEMBER
Sharwan S/o Shri Manohar Das, aged about 51 years, R/o Suratram Ki Dhani, Post Jorawar Nagar, Via Kawat, District Sikar and holding the post of Gang Man, Casual Worker (Temporary Status Holder) under Public Way Inspector (R.S.), North Western Railway, Reengus, District Sikar.
Applicant
Mr. C.B. Sharma, counsel for applicant.
VERSUS
1. Union of India through General Manager, North Western Zone, North Western Railway, Near Jawahar Circle, Jagatpura, Jaipur.
2. Divisional Railway Manager, North Western Railway, Jaipur Division, Jaipur.
3. Senior Divisional Personnel Officer, North Western Railway, Jaipur Division, Jaipur.
4. Assistant Divisional Engineer (RPC), North Western Railway, Jaipur Division, Jaipur.
5. Public Way Inspector (RS), North Western Railway, Reengus, District Sikar.
Respondents
Mr. P.K. Sharma, counsel for respondents.
ORDER (ORAL)
The applicant has filed the present Original Application praying for the following reliefs: -
i) That the respondents be directed to allow the applicant to perform his duties as Gang Man (Temporary Status Holder) forth with by quashing note dated 12/10/2011 (Annexure A/1) with all consequential benefits.
ii) Any other order / directions of relief may be granted in favour of the applicant, which may be deemed just and proper under the facts and circumstances of this case.
iii) That the costs of this application may be awarded.
2. Brief facts of the case, as stated by the learned counsel for the applicant, are that the applicant joined respondent-railway as casual worker in the year 1978. Thereafter, he was granted temporary status in the year 1994 vide order dated 01.11.1995 (Annexure A/2).
3. He further submitted that due to sickness of his wife and family circumstances, the applicant could not perform his duties from July 1996. However, on 20.02.1998 (Annexure A/3), the applicant made request to allow him to perform his duties.
4. Learned counsel for the applicant also submitted that in the meantime, wife of the applicant expired on 13.11.2001. The applicant also faced mental problems since 2001 after the death of his wife and could not perform his duties and thereafter obtaining fit certificate dated 19.01.2011 from SMS Hospital, Jaipur (Annexure A/7), made request before the respondent no. 4 on 19.02.2011 (Annexure A/8) for taking him on duty after allowing him to go through medical examination through railway doctor.
5. Learned counsel for the applicant further submitted that the applicant being temporary status holder never questioned for absence and his services cannot be terminated without procedure, so he is entitled to perform his duties.
6. Learned counsel for the applicant submitted that the respondents have not communicated any order to him whereby his services has been terminated. However, he has been supplied with the note-sheet dated 03.10.2011 and 12.10.2011 (Annexure A/1). The office note dated 03.10.2011 states that the applicant can be taken on duty after certain formalities as per the policy circular No. EP/637/0 Part-III dated 17.10.1983. However, according to the note of the Senior DPO, no action appears to have been taken against the applicant due to his unauthorized absence. However, he has recommended that the applicant may be informed that he cannot be taken on duty since he was unauthorizedly absent for 13 years. He has further recommended that the action can be taken against the applicant according to the rules. The Senior DEN has written on this note to take action as per the advice of Senior DPO, but the applicant has not been informed about any action taken by the respondents against him. Therefore, the learned counsel for the applicant submitted that the respondents be directed to take the applicant on duty as per the procedure as the respondents nowhere denied to perform the duties to the applicant.
7. In support of his submissions, learned counsel for the applicant relied upon the order dated 24th of August, 2006 passed by this Bench of the Tribunal in OA No. 202/2004 (Ghasi vs. Union of India & Ors.).
8. On the other hand, the respondents in their written reply have admitted that the applicant was recruited as project casual worker in the year 1978 and in the year 1994 temporary status was granted to him.
9. The respondents have further stated that according to letter No. E840/1 part 1 dated 08.05.2012 of Assistant Divisional Engineer, R.P.C., Jaipur, the project office Rail Root Inspector / R / S, Ringus has been closed after the completion of project.
10. The respondents have further stated that the applicant was absent from his duties without any permission, therefore, it shows that the applicant was not interested to work with the rail services and the applicant did not give any information till 48 hours from the absence of his duty.
11. The learned counsel for the respondents heavily placed reliance upon the circular No. 8634 of the Department of Personnel, which, according to the respondents, states that if any temporary worker not present till two calendar years, his name should be struck off the casual labour register. While, in the present case, the applicant has been absent for about 16 years, therefore, he cannot be taken on duty as per circular No. 8634 of the Department of Personnel and, hence, the Original Application has no merit and it should be dismissed with costs.
12. The applicant has also filed rejoinder to the written reply.
13. Heard the learned counsel for the parties, perused the documents available on record and the case law referred to by the learned counsel for the applicant.
14. It is not disputed between the parties that the applicant started working with the respondents in the year 1978. It is also not disputed between the parties that the applicant was granted temporary status with effect from 03.11.1994 as per order dated 01.11.1995 (Annexure A/2). It is also not disputed that the applicant has been absent from duty from the year 1996; though, according to the applicant, he made a request to the respondents to take him on duty vide his application dated 20.02.1998 (Annexure A/3). However, he was not taken on duty in spite of his request.
15. Learned counsel for the respondents was asked by the Bench to clarify whether any action has been taken against the applicant for being absent from duty for a very long period according to the rules on the subject. Learned counsel for the respondents admitted that as per the record, no action has been taken against the applicant but he relied on the Circular No. 8634, according to which the name of the applicant was struck off the casual labour register as he had not reported for duty for two years. Learned counsel for the applicant stated that this circular is not applicable in the present case as it is with respect to the casual labourer who was earlier discharged from service on completion of work or for want of further productive work, and has not worked on the Railways again in the preceding two complete calendar years then his name should be struck off the casual labour register. The applicant is not a casual labourer. He has been granted temporary status with effect from 03.11.1994 and, therefore, the present circular is not applicable in the case of the applicant.
16. I have very carefully gone through the circular No. 8634. Relevant part of para 2 of circular No. 8634 is quoted below: -
2. The Ministry of Railways have now decided that if a casual labourer who was earlier discharged from service on completion of work or for want of further productive work, has not worked on the Railways again in the preceding two complete calendar years, his name should be struck off the casual labour register. A bare perusal of this circular makes it clear that it is applicable only for casual labourers. In the present case, the applicant has been given temporary status in 1994. Moreover, there is no order on record to show that he was ever discharged from service on completion of work or for want of further productive work; therefore, I am of the considered opinion that this circular is not applicable in the case of the applicant.
17. Learned counsel for the respondents admitted that the services of the applicant could have been terminated only after following the procedure as laid down in Railway Servants (Discipline and Appeal) Rules, 1968. It is admitted by the respondents that no such action has been taken against the applicant under these rules.
18. The note-sheet of Senior DPO dated 12.10.2011 (Annexure A/1) also mentions that it appears that no action has been taken against the applicant for his unauthorized absence so far.
19. Since the applicant has been granted temporary status in 1994, therefore, he cannot be denied to join the duty by an oral order. The respondents were free to take any action against the applicant as per rule for his long unauthorized absence but they have not done so. Learned counsel for the respondents was not able to explain as to why the respondent-department could not take any action against the applicant for so long. Even after the note of the Senior DPO dated 12.10.2011 and the decision of the Senior DEN dated 14.10.2011, it appears that no action has been taken against the applicant since almost last two years.
20. I have gone through the order dated 24th of August, 2006 passed by this Bench of the Tribunal in OA No. 202/2004 (Ghasi vs. Union of India & Ors.) as referred to by the learned counsel for the applicant. I am of the view that the facts and circumstances of that OA are quite similar to the present OA. In fact, the present OA is on a better footing than OA No. 202/2004. In that OA, the respondents had at least issued an order dated 13.05.2003 (Annexure A/1 of that OA) refusing the applicant to be taken on duty on the plea that he being a casual employee and he was absent for more than 02 years, whereas in the present OA the respondents have not even informed the applicant that he has not been taken on duty for his long absence. Even, no show cause notice has been issued to the applicant for his long absence and why the action should not be taken against him for being absent for a long period.
21. On the basis of the above discussion, I am of the opinion that the applicant is entitled to be taken on duty. Therefore, I direct the applicant to present himself before the respondent No. 2 for performing his duties within ten days from the date of this order. Respondent No. 2 would thereafter refer the case of the applicant to the Railway Doctor for his medical examination. If he is found fit after the medical examination, further action would be taken by the respondents for taking him on duty. This exercise shall be completed within a period of two months from the date when the applicant presents himself before the respondent no. 2 for joining his duties.
22. However, it is made clear that the applicant is not entitled for any wages for the period during which he remained absent.
23. With these observations and directions, the Original Application is disposed of with no order as to costs.
(ANIL KUMAR) ADMINISTRATIVE MEMBER kumawat