Central Administrative Tribunal - Delhi
Ms. Madhuri vs Union Of India on 9 November, 2011
Central Administrative Tribunal Principal Bench OA No.1833/2010 New Delhi, this the 9th day of November, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Ms. Madhuri, Aged about 22 years, D/o Shri Madan Kumar Roy, R/o 170, A-1, Basant Lane, Railway Colony, New Delhi-110055. Applicant. (By Advocate : Sh. Amit Anand) Versus Union of India, through 1. The Secretary, Railway Board, Rail Bhawan, New Delhi-110001. 2. The General Manager, Northern Railway, Baroda House, New Delhi. . Respondents. (By Advocate : Mr. R.L. Dhawan) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Ms. Madhuri, the applicant in the present OA, having worked as a Substitute Bungalow Khallasi, as per the letter dated 20.03.2009 for more than 200 days and claiming to have attained the temporary status, challenges the termination of her service issued vide letter dated 15.02.2010 (Page 13) without proper enquiry pursuant to a Show Cause Notice dated 17.12.2009 (Page 11).
2. Before we may address the controversy, it is noted that the case was heard earlier on 05.5.2011 and certain aspects of the case, though argued on that date, but were not elaborated, the parties were directed to clarify those points in the order dated 18.5.2011 in the following manner:-
The Applicant, working as a substitute Telephone and Dak Khallasi (TADK), is challenging the notices to show cause dated 24.11.2009 and 17.12.2009 as to why she should not be disengaged from service on the ground that the officer under whom she is working has reported that her working report is not satisfactory. Her service was terminated by order dated 15.02.2010 on the ground that she had been absent from duty for 21 days from 08.04.2009 to 28.04.2009 and for seven days from 24.11.2009 to 30.11.2009 and that she refused to attend duties assigned to her by the Deputy CSO/Engg/HQ.
2. The Applicant was appointed as TADK under Member, Engineering, Railway Board with effect from 20.03.2009. On the retirement of the said Member, she was transferred to work with Deputy Chief Engineer, Northern Railway. As per the information given by the Respondents, she had completed 200 days of service on 24.11.2009.
3. In reply dated 07.12.2009 to the notice to show cause dated 24.11.2009 she stated that she had never been on unauthorised absence and that no reasons had been stated in the notice to show cause as to how her work was unsatisfactory. The Respondents then served the notice dated 17.12.2009 on her. In reply dated 31.12.2009 she reiterated that she had not absented herself without authority and that on completion of 120 days of service, she had become due for grant of temporary status. Her services were terminated by order dated 15.02.2010.
4. The learned counsel for the Applicant would contend that she had never been communicated any warning about her alleged unsatisfactory work. Moreover, she had automatically acquired temporary status on completion of 120 days of service as per the provisions of the paragraph 1515 of the Indian Railways Establishment Manual (IREM) Volume I and that her service could only be terminated by following the due procedure prescribed in Railway Servants (Discipline and Appeal) Rules, 1968. Reliance in this regard has been placed on the judgement of the Honourable Patna High Court in Union of India and Others Vs. Saroj Kumar Rai, Civil Writ Petition number 16201 of 2007, decided on 20.07.2010. In the cited case also the respondent was engaged as substitute Bungalow Khalasi, also known as TADK, by order dated 21.07.2005. His services were terminated after he had completed more than 120 days of service on the charge of unauthorised absence for some time. The order of the Tribunal in OA number 395 of 2006, against which the aforesaid Writ Petition has been filed, quashing and setting aside the order of the termination, was upheld by the Patna High Court.
5. The learned counsel for the Respondents stated that SLP had not been filed before the Honourable Supreme Court against the above order of the Honourable Patna High Court. He would, however, place reliance on the order of a Full Bench of this Tribunal in OA number 896 of 1995 and two other OAs, which were decided on 12.02.1999 to oppose the cause of the Applicant. It was held by the Full Bench that services of a Bungalow Khalasi could be terminated, without notice, even after he had acquired temporary status. The learned counsel would further contend that the respondent in the case before the Patna High Court was working in Metro Railway, Kolkata, whereas the Applicant herein was working in Northern Railway, Delhi and instructions regarding the number of days in which temporary status was acquired were different for different Railways.
6. There are certain aspects, which have been argued but not elaborated by the learned counsel for the parties. The learned counsel for the Applicant has not shown any rule to say that services of a Railway employee cannot be terminated without detailed inquiry, if he/she acquired temporary status. A Full Bench of this Tribunal had considered an identical issue in Shyam Sunder Vs. Union of India and others, OA number 896/1995 and two other related matters and had held that:
No. The termination of the service of a substitute Bungalow Peon/Khallasi, who has acquired temporary status, is not bad or illegal for want of notice before termination. In such a case, he may be entitled to pay for the period of notice in lieu of notice, as discussed in paragraph 17 of this order. This view is based on a catena of judgements of the Honourable Supreme Court that services of a temporary employee can be terminated by an order simpliciter and it may not be necessary to hold detailed inquiry. It is not the case of the Applicant that the impugned order is stigmatic. The learned counsel for the Respondents has, although argued that the instructions regarding acquiring of temporary status are different in different Railways and that the concerned General Managers can frame suitable rules in this regard, yet has failed to show that the period for acquiring temporary status in the Railway to which the Applicant belongs was not 120 days, but more than this. These aspects have not been considered in the judgement of the Honourable Patna High Court. These aspects need to be elaborated and argued properly.
7. The OA, therefore, needs to be reheard on the above aspects of the case. List for re-hearing on 23.05.2011. Issued notice to both the parties. The learned counsel for the respondents furnished additional documents and copy of judgments on 26.5.2011 and 25.10.2011 respectively. Learned counsel for the applicant submitted a copy of the judgment in Smt. Raj Kumari Versus Union of India and others [WP (C) No.5004/2007 decided on 31.10.2008] during the final hearing on 04.11.2011.
3. Shri Amit Anand, learned counsel representing the applicant would state that she was engaged as Substitute Bunglow Khallasi on 20.3.2009 and her service was terminated on 15.02.2010 wherein no reason had been given either in the Show Cause Notice or in the termination order. His contention is that specific reason for dis-engaging the applicant in the post of Substitute Bungalow Khallasi should have been given and the applicant having got the temporary status as Bungalow Khallasi could not have been terminated by an order simplicitor without conducting prescribed inquiry. It is further stated that Show Cause Notice dated 17.12.2009 is rather vague and termination has been prejudged as far back as in the Show Cause Notice. Shri Amit Anand would further submit that the applicant gained the temporary status, as she completed more than 120 days of service in the post of Bungalow Khallasi in the calendar year 2009. On mere absence for few days the applicant could not be visited with a termination order. The termination being punitive, the applicant was entitled to be enquired into before such termination order could be issued. He drew our attention to the information gathered by the applicant through the instrument of Right to Information Act which inter alia provided that the applicant had worked for 66 days between April 2009 to July, 2009 and 134 days between July 2009 to November, 2009. The said information is available at page 14 of the paper book. He submits that as per the decisions of the Honble High Court in Raj Kumaris case (supra) it has been held that the services of the petitioner in the said case could not be terminated summarily but appropriate inquiry should have been conducted. Shri Anand submits that the judgment of the Full Bench of this Tribunal in Shyam Sunders case (supra) relied on by the respondents is distinguishable in the facts of the case and is not applicable in the case of the temporary status Bungalow Khallasi. Therefore, Shri Amit Anand would submit that in accordance with the judgment in Raj Kumaris case (supra), the present case should be allowed with appropriate directions to the respondents to quash the orders dated 17.12.2009, 24.11.2009 and 15.02.2010 with further directions to the respondents to reinstate her in service.
4. Opposing the above contentions Shri R.L. Dhawan, learned counsel representing the respondents submits that the applicant had been absconding from her duties from November, 2009 and did not report to her duties. The applicant has not got her temporary status, as she has been on frequent absence. She was not on continuous service for more than 120 days in the calendar year. He raises further objections that the applicant without availing the departmental remedy has rushed to the Tribunal and as such application is not maintainable, as held by Honble Supreme Court in the case of S.S. Rathore Vs. State of Madhya Pradesh [SLJ 1990-1-78]. He further submits that applicants service was also not satisfactory as reported in a letter dated 24.11.2009, which had been reflected in the Show Cause Notice dated 17.12.2009, wherein the applicant was granted an opportunity to submit her explanation in the matter. She did submit the explanation on 31.12.2010. She was on unauthorized absence from 8th to 28th April, 2009, and 4th to 13th July 2009. On consideration of her representation, the Competent Authority found that it was a fit case to terminate the services. In support of his contention, Shri Dhawan placed his reliance on the judgment of the Full Bench of this Tribunal in Shyam Sunders case (supra); judgments of Honble Supreme Court in the matters of Oil and Natural Gas Commission and Others Versus Dr. Mohd. S. Iskendu Ali [1980-3-SCR-603]; State of Uttar Pradesh & Anr. Versus Kaushal Kishore Shukla [JT-1991-1-SC-108]; and Champak Lal Chiman Lal Shah Versus Union of India [Civil Appeal No.472 of 1962 decided on 23.10.1968]. Shri Dhawan, therefore, urges that the OA has no merits and must be dismissed.
5. Having heard the above contentions of the rival parties, with their assistance we perused the pleadings, extant guidelines and the judgments relied on by them. We have carefully gone through the judgment of Honble High Court of Delhi in Raj Kumaris case and note that the facts in the said case and in the present case being dis-similar, the judgment is clearly distinguishable. The controversy is in narrow compass. Whether the impugned termination order dated 15.2.2010 is legally sustainable?
6. The issues in this OA have been considered by a Full Bench of this Tribunal in Shyam Sunder and two related cases (supra). We may refer to the same. The Full Bench was constituted as a Division Bench of this Tribunal found that the subsequent decisions of the Tribunal in Shiv Bahadur Maurya vs. Union of India, [O.A. No.2937/92, decided on 15.7.1993 (Delhi)]; Ashok Kumar Limba vs. Union of India, [O.A. No.2081/93 (Delhi), decided on 27.5.1994 (Delhi)]; and Sameshwar Ram vs. Union of India, [1995 (3) SLJ (CAT) 332 (Patna)] were in conflict with an earlier decision of the Tribunal in F. A. Charles vs. Union of India, [1989 (10) ATC 456 (Madras)] and accordingly made a reference for consideration of the following questions of law by the Full Bench:-
(i) whether bungalow peons in Railways are Railway 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 number (iii) is relevant for the consideration of issues in the instant OA.
7. We may get into the facts of the cases in the said judgment of Full Bench. The applicants in those cases were substitute Bungalow Peons or Khallasis for different periods. Their services were terminated with immediate effect by orders passed on different dates. They filed appeals or representations, which were rejected and, therefore, they filed the said OAs for their reinstatement with consequential reliefs after quashing the impugned orders of termination and those of rejection of their appeals or representations. There is no statutory provision about the period of continuous service for conferment of temporary status on a substitute or a casual labour nor any limit of continuous period of service for such purpose restricting the powers of the administrative authorities in this regard. Under the circumstances, it appears that looking to the administrative exigencies the Railway Board or the General Managers of Railways could make rules or issue instructions from time to time for appointment of substitutes on such terms and conditions as decided by them. Now looking to the meaning of Substitutes given in paragraph 1512 of the Establishment Manual, the purpose of their employment would appear to be that of making stop-gap arrangement. Ordinarily, persons employed on stop-gap arrangements are not entitled to any such right or privilege, as recognized by the Railway Board in paragraph 1515 of the Manual. These provisions read with those contained in paragraph 2005 of the Manual pertaining to Casual Labour would show that the Substitutes are kept at par with the Casual Labour and, more or less, given similar rights and privileges as are given to the Casual Labour. Paragraph 2005 of the Establishment Manual indicates that the period of continuous service for the purpose of conferring temporary status may be either of 120 days or of 360 days, depending upon the nature of work or the post given to a casual labour. Paragraph 1515 of the Manual itself makes a completion of four months continuous service, the substitutes may be afforded all the rights and privileges as may be admissible to temporary railway servants. That means, without any rigidity, different periods of continuous services for substitutes against different posts may be prescribed for conferment of temporary status on them. It is also to be seen that there is no rule or law, restricting the powers of the General Managers of Railways in regard to making amendments or changes in the prevailing rules pertaining to the period of continuous service for conferment of temporary status on a substitute. Therefore, the existing executive Instruction maybe superseded by a subsequent notification or Executive Instruction reducing or increasing the period of continuous service for the purpose of conferment of temporary status on a substitute or a casual labour. In this context, judgments in various cases dealing with the period of continuous service for the purpose of temporary status were referred to. In the case of Shri Basant Lal & 104 Ors. vs. Union of India, [1990 (1) ATJ 606 (Delhi)] it was evident that in those cases no letters of any General Manager were before the Tribunal and the decisions were based on paragraph 1515 of the Establishment Manual, which was for general application made by the Railway Board in exercise of powers under rule 123 of the Establishment Code. The powers of the General Managers do not appear to be fettered by the Boards powers under rule 123 of the Code. They could, therefore, fix longer periods of continuous service for substitutes against any particular post than mentioned in paragraph 1515 of the Manual and a clear indication in this regard is given in the prefactory note of paragraph 2005 of the Manual, which runs as: Entitlement 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). In F.A. Charless case (supra), referred to in the order of reference the question of continuous service for conferment of temporary status was not under consideration and in terms of the contract of employment, the termination of the service of a Substitute Bungalow Lashkar within three years from the date of employment was upheld. Sameshwar Rams case (supra) was distinguished where the continuance or discharge of a Bungalow Peon on the likes and dislikes of a successor Officer was disapproved and reinstatement was ordered as the applicant therein was discharged from service on the ground that the new Officer did not like to continue him in service. In the light of aforesaid discussions, the Full Bench came to the conclusion that a Bungalow Peon/Khallasi acquires temporary status on completion of such a period of continuous service as may be prescribed by the General Manger of a particular Railway and current on the date of employment of a person as a substitute or a casual labour. In the absence of any such rule or instructions from the General Manager of a Railway, the general instructions or rule in that regard, like the one under paragraph 1515 of the Manual, issued by the Railway Board and current on the date of employment may determine the period of continuous service for conferment of temporary status on a substitute or a casual labour. The Full Bench summed up the answers to the questions framed by it which would read thus :
(i) Question No.(i) does not arise as stated in paragraph 3 of this order.
(ii) This question also does not arise for similar reasons given in paragraph 3 of this order.
(iii) (a) No. As a general principle, it cannot be laid down that after putting in 120 days continuous service, a Bungalow Peon/Khallasi acquires temporary status. He acquires temporary status on completion of such a period of continuous service as may be prescribed by the General Manager of the Railway under which the works and which is current on the date of his employment as a Bungalow Peon/Khallasi. In the absence of any such rule or instructions from the General Manager, the general instructions or rule in that regard, like one given under paragraph 1515 of the Manual, issued or framed by the Railway Board and current on the date of employment may determine the period of his continuous service for conferment of temporary status, as discussed in paragraph 10 and 11 of this order.
Yes. 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 as discussed in paragraphs 14, 15 and 16 of this order.
(iv) No. The termination of the service of a substitute Bungalow Peon/Khallasi, who has acquired temporary status, is not bad or illegal for want of notice before termination. In such a case, he may be entitled to pay for the period of notice in lieu of notice, as discussed in paragraph 17 of this order. The question whether for want of retrenchment compensation under section 25-F of the Industrial Disputes Act, 1947, the termination of the service of a substitute Bungalow Peon/Khallasi, who has, acquired temporary status, is bad or illegal, is beyond the scope and jurisdiction of this Tribunal, as discussed in paragraph 19 and 20 of this order.
8. Before we may go into the guidelines issued by the Northern Railways on the above controversy, we note here that employees in temporary or probationary service can be terminated for unsatisfactory works and such termination cannot be punitive/stigmatic. We refer to the following judgments in Oil and Natural Gas Commission vs. Md. Iskender Ali, [(1980) 3 SCC 428], it was held by a Bench of larger strength of the Honble Supreme Court that:
9.It is well settled by a long course of decisions of this Court that in the case of a probationer or a temporary employee, who has no right to the post, such a termination of his services is valid and does not attract the provisions of Article 311 of the Constitution. The following passage from State of Maharashtra vs Veerappa R. Saboji, [AIR 1980 SC-42] is extracted below:
Ordinarly and generally the rule laid down in most of the cases by this Court is that you have to look to the order on the face of it and find whether it casts any stigma on the government servant. In such a case there is no presumption that the order is arbitrary or mala fide unless a very strong case is made out and proved by the government servant who challenges such an order. The aforesaid view was repeated in State of U.P. vs. Kaushal Kishore Shukla, [JT 1991 (1) SC 108] by a three-Judges Bench of the Honble Supreme Court by saying that :
7. A temporary Govt. servant has no right to held the post, his services are liable to be terminated by giving him one months notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt. servants..
9. The Northern Railway has issud a consolidated guidelines in the year 1995 on the subject of appointment of Substitute Bungalow Khallasi in Head Quarters and other offices. The relevant part of the said guidelines read as follows:
i. In case of appointment of fresh faces as Substitute Bungalow Khallasies, GMs prior personnel approval should be obtained. The initial appointment will be for a period of three months. The engagement of the Bungalow Khallasi shall be purely on contractual basis. In case of any eventuality such as his unwillingness to work as Bungalow Khallasi or he/she is found unsuitable or his/her performance is found unsatisfactory, his/her services shall be terminated.
After the initial period of three months, the extension of the services of the Substitute Bungalow Khallasies will be approved in different spells of three months each by the nominated ADRM on the Division and Dy. GM/G in Hd.Qrs. Office on receipt of satisfactory working report from the officer concerned. This procedure will be followed upto a total period of two years. After two years the person will be granted temporary status and also screened for regular absorption after conducting screening alongwith other Class IV staff. Grant of temporary status to them will not entitled them to automatic absorption against regular post.
In cases where the appointment of a substitute Bungalow Khallasi had been approved initially for a particular officer and later on his services are required to be utilized by another officer, approval of CPO/Admn. Shall be necessary for such changes.
Any changes in the category of a Substitute Bungalow Khallasi (including screened one) before completion of three years services shall required the prior personal approval of GM such change after completion of three years service shall require the prior approval of CPO/Admn.
Additional information as per Annexure A & B have to be furnished at the time of engagement of Bungalow Khallasi. Procedure of appointment of B.Peon is also enclosed.
10. In view of the Full Bench Judgment, the extant guidelines of Northern Railways and decision of Honble Apex Court, it may be concluded that the services of a Bungalow Peon/Khallasi, whether has acquired temporary status or not can be terminated on the ground of unsatisfactory work without holding a departmental enquiry.
11. There is no dispute on facts. The applicant joined as Substitute Bungalow Khallasi on 20.3.2009. She has completed 120 days of work in the Calendar Year 2009. She did not attend her duties in specific spells. Her controlling authority noted the unsatisfactory performance of the applicant for which a Show Cause Notice was issued. Her termination was ordered as per the extant rules and guidelines. The impugned order is simple and not stigmatic. As held in a catena of judgments of Honble Apex Court, termination of temporary employees and those on probation can be passed as per law. Unsatisfactory performance can be the ground for such termination which has been the basis for the applicants termination. As per the Northern Railway guidelines the substitute Bungalow Khallasies can be considered for granting temporary status after they put in satisfactory performance at least for two years. In this instant case, the applicant has not even put two years of service.
12. Considering the totality of facts and circumstances of the case, taking note of the extant guidelines in the subject and guided by the trite law, we are of the considered opinion that the order dated 15.2.2010 terminating the applicants service is simple and non stigmatic and the same is legally sustainable and procedurally tenable. Resultantly, finding no merits in the OA, the same is dismissed. No costs.
(Dr.Ramesh Chandra Panda) (V.K. Bali) Member (A) Chairman /jk/