Soran Singh vs Union Of India & Ors.
2008 Latest Caselaw 1040 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
46.

+                               LPA 2099/2006

                                Date of order: July 16, 2008


      SORAN SINGH                      ..... Appellant
               Through: Mr. Deshraj and Mr. Vibudh
               Singh, Advocates.

                    versus


      UNION OF INDIA & ORS.           ..... Respondents
                    Through: Mr. J.K. Singh, Advocate.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE DR. JUSTICE S.MURALIDHAR

                             ORDER

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in Digest? Yes

1. Admit.

2. Mr. Singh, learned counsel waives service on behalf of

the respondent.

3. By consent of the parties appeal is taken up for hearing.

4. This appeal by the workman is directed against the

judgment dated 12th October 2006 of the learned Single Judge

in W.P.(C) No. 13260 of 2004 whereby the Award of the

Tribunal directing reinstatement of the respondent/workman

with 50% wages and other consequential benefits was set aside.

5. A large number of casual labourers (monthly rated)

joined the Railways under a scheme of regularization. In March

1984 a racket was detected by the Vigilance branch of the

Railways. It was reported that some persons had been employed

on the basis of bogus or forged casual labour cards. A letter

dated 18th October, 1985 was written by Central Railways,

Headquarters Office, Personnel Branch to serve notice and seek

explanation from the persons found to have entered service by

fraudulent means. The said letter read as under:-

" Sub: Termination of Casual Labours.

Instructions regarding bogus Casual Labour Cards received under Board's letter No. E9NG) II-93/CL, 24 dated 9/2/84 were circulated vide this office confidential letter No. HPB/22513/R/XI dated 5/3/84.

Receipt Vigilance Investigations on JHS Division have revealed that large number of Casual Labours monthly rated or otherwise joined the Railways in that capacity by producing fake Casual Labour Cards.

Since casual Labour monthly/rated otherwise have obtained appointment on the basis of fake/forged entries in the Casual Labour cards involving serious misconduct, action should be taken against above

casual labours to terminate their services on issue of show cause notice.

Notices as per performa should be issued and on receipt of explanation and other evidence if any should be considered by competent authority, giving reasons of termination of services as a speaking order.

Please note that these Casual Labours will not be eligible for benefits under ID Act."

(emphasis supplied)

6. Thereafter the Railways sent a list of bogus casual

labourers to all its offices including the one at Jhansi, where the

appellant was working, with a direction to ensure that their

services were terminated immediately. The name of the

respondent figured at serial number 137 of the list attached with

the letter. A show cause notice dated 8th January, 1987 was

served upon the appellant. He was thereafter terminated from

service on 9th January, 1987 without waiting for his reply to the

show cause notice. The appellant raised an industrial dispute

which came to be referred to the Tribunal by the Central

Government by an order dated 29th March, 1996 in the

following terms:-

"Whether the action of the DRM Central Railway, Jhansi in terminating the service of Sh. Soran Singh APM w.e.f. 8.1.87 is legal and justified? If not, he is entitled to what relief?

7. The Tribunal found that no opportunity was given to the

workman to give an explanation or to produce his defence. He

was removed from the service in total violation of principles of

natural justice. Further, the Tribunal noted that pursuant to an

Award of the Central Government Industrial Tribunal, Kanpur,

47 employees whose services had been terminated in similar

circumstances, were reinstated and were still working. This fact

was not denied by the Railways. The only explanation offered

was that their case was on a different footing. However, the

Railways failed to distinguish the case of the appellant

workman from the case of those 47 reinstated workmen. The

Tribunal therefore concluded that the termination of his services

was illegal and that the workman was entitled to be reinstated in

service with 50 % back wages and other consequential benefits.

8. The respondent filed the aforementioned Writ Petition

(C) No. 13260 of 2004 challenging the Tribunal's Award.

Initially, notice was issued in the writ petition limited to the

question of back wages for the period from October 1984 till

March 1996. The learned Single Judge accordingly stayed the

direction contained in the Award to pay 50% back wages for the

aforementioned period. However, in the impugned judgment

allowing the writ petition the learned Single Judge held that the

writ petition could not be confined to the issue of back wages

and proceeded to hold that where a person entered service by

fraudulent means the Court had the duty to pass necessary

orders. Relying on the decisions of the Apex Court in Union of

India and others v. M. Bhaskaran AIR 1996 SC 686 and R.

Vishwanatha Pillai v. State of Kerala and others 2004 (2) SCC

105, the learned Single Judge set aside the award of the

Tribunal granting reinstatement with 50 % back wages to the

appellant workman.

9. We have heard the learned counsel appearing for the

parties. We find that in the Statement of Claim of the workman

has categorically stated that he was employed in the Railways

with effect from 10th December 1982 and was posted under the

Traffic Inspector, Circle Agra Cantonment. Thereafter he

worked at the Agra City Railway Station till 7 th January, 1987.

The grievance of the workman is that he was removed from

service on 8th January, 1987 without giving him an opportunity

of hearing or producing his defence in support of his case. In its

Award, the Tribunal noted that despite several opportunities,

the Respondents herein did not file their written statement

within the prescribed time. Ultimately a written statement came

to be filed on 24th November, 2000 without the prior permission

of the Tribunal. It was inter alia contended that the case of the

appellant workman cannot be compared with those of the other

employees because it was different and distinct. It was alleged

that the appellant workman had obtained employment on the

basis of a fake casual labour card and therefore the termination

of his services was justified. The copies of documents filed by

the Railways along with the list of fake casual labour cards

were neither attested nor proved in evidence. However, as far

as the workman was concerned besides filing documentary

evidence he filed an affidavit. He was also cross-examined.

The Railways did not file any affidavit of evidence. Also they

failed to adduce any evidence to prove that the service card was

fake or forged. The Tribunal recorded that the workman had not

been given any opportunity by the Railways to explain his case.

Further, in his cross-examination the workman had denied that

he had submitted any fake casual labour card or that he had

absconded from duty. On the basis of this evidence and

material on record, the Tribunal came to the conclusion that the

termination was illegal as the management was unable to show

that how the appellant's case was different from the 47

employees who had been reinstated by virtue of the Award of

the CGIT, Kanpur.

10. The learned counsel appearing for the respondents was

unable to show any evidence on record which would show that

the workman's entry into service was on the basis of a fake

casual labour card. In fact no enquiry had been conducted

against the workman. The letter dated 18th October 1995 issued

from the headquarters required that a show cause notice should

be given to a fake casual labour card holder to seek an

explanation before terminating his services. Even before a

reply could be sent, his services were terminated. There cannot

be any doubt that the principles of natural justice were totally

violated. We find that the learned Single Judge has failed to

appreciate that the Railways had failed to produce any evidence

in support of the case that the appellant had entered service by

using a fake or forged casual labour card. The decisions relied

upon by the learned single Judge in Union of India and others

v. M. Bhaskaran (supra) and R. Vishwanatha Pillai v. State of

Kerala and others (supra) have no bearing to the facts of the

case. In M. Bhaskaran's case the employee was removed on

the ground of snatching employment on the basis of bogus and

forged casual labourer service cards. The order of removal was

passed after holding departmental proceedings and hearing the

workmen. The Court held that the fact that the employee

continued in service for number of years on the basis of such

appointment cannot create equity in his favour nor estoppel

against the employer. In R.Vishwanatha Pillai's case, the

delinquent officer was charged with procuring appointment in a

reserved post by producing a false caste certificate. Scrutiny

Committee constituted under the directions of the Supreme

Court in Kumari Madhuri Patil case, (1994) 6 SCC 241, after

affording due opportunity to him, found him guilty and High

Court as well as Supreme Court upheld that finding. It was held

that in such circumstances issuance of a fresh notice to the

delinquent under rules before dismissing him was unnecessary.

11. Coming to the question of the back wages it is seen from

the record that after the termination letter dated 8 th January,

1987 the workman approached the CGIT, Kanpur in case LCA

No. 245 of 1989. Ultimately, the CGIT, Kanpur rejected the

case and ordered the appellant workman to approach the

appropriate forum under the Industrial Disputes Act.

Thereafter the matter was taken up by the employees union and

the conciliation proceedings were held on 27th January, 1994

and 22nd March, 1994. The failure of these proceedings

ultimately resulted in a reference being made to the Tribunal.

In the circumstances, this was not a case where the workman

did not pursue his remedies with diligence. We are, therefore,

unable to agree with the view of the learned Single Judge that

there was nine year delay on the part of the workman to

approach the Tribunal. This finding of the learned Single Judge

is contrary to the record. In the circumstances, we are of the

view that the order of the Tribunal granting 50% back wages to

the workman is just and fair. Accordingly, we set aside the

order of the learned Single Judge and restore the Award of the

Tribunal. It is stated that the employee has been reinstated in

service. The amount of the back wages be released within a

period of two months.

12. The appeal is, accordingly, allowed.

CHIEF JUSTICE

S.MURALIDHAR, J JULY 16, 2008 sb/nm