Baijnath Mandal vs Uoi & Ors.
2014 Latest Caselaw 6465 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                             Date of decision: 04.12.2014

%     W.P.(C) 4151/2008

      BAIJNATH MANDAL                                 ..... Petitioner
                      Through:        Ms. Meenu Mainee, Advocate
               versus

      UOI & ORS                                              .....Respondents

                         Through:     None.

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT
      HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

1. The present Writ Petition is preferred under Articles 226 and 227 of the Constitution of India, for assailing the order dated 11.12.2006 in O.A. No. 1687/2005, and order dated 12.03.2008 in R.A. No. 36/2007 passed by the Central Administrative Tribunal (hereinafter referred to as "CAT/Tribunal"), Principal Bench, New Delhi, whereby the CAT held that the termination of services of the Petitioner by the Respondents was within the framework of rules and regulations prescribed.

2. At the outset, we may note that there is no appearance on behalf of the respondents after 10.09.2014. However, the respondents have filed their counter-affidavit. We have heard submissions of learned counsel for the petitioner, and perused the documents on record and proceed to dispose of the petition.

3. The Petitioner was appointed as a Bungalow Khallasi, after passing a medical test, with the Respondent no. 3 - on 27.01.2000. Petitioner was conferred with temporary status vide communication dated 07.06.2000 w.e.f. 27.05.2000, after completion of 120 days of service. On 31.07.2001, the Petitioner was transferred to Chandigarh along with Respondent no. 3. The Petitioner was terminated from his services on 30.04.2002 with one months' pay in lieu of notice.

4. The Petitioner appealed to the General Manager, Northern Railway, Baroda House, New Delhi (General Manager) on 17.05.2002 against his removal from service. Since the appeal was not decided, nor any action taken, the Petitioner approached the Tribunal by filing O.A. No. 2795/2002, which was disposed of with directions to the Respondents to consider and dispose of the Petitioner's appeal dated 17.05.2002, by passing a detailed speaking order within two months.

5. The Divisional Railway Manager, Northern Railway, Ambala Cantt., under the directions of Respondent no. 3, disposed of the Petitioner's appeal by an order dated 16.01.2003. The Petitioner challenged the dismissal of the said appeal in O.A. No. 2668/2003. On 17.01.2005, while disposing of the application, the Tribunal remitted the matter back to Respondent No. 1, General Manager, to personally look into the matter and pass appropriate orders.

6. Complying with the Tribunal's order dated 17.01.2005, the Respondent No. 1 passed an order dated 01.07.2005 by which the representation dated 17.05.2002 of the Petitioner was rejected, and he was discharged from his services as a Bungalow Khallasi.

7. The Petitioner, being aggrieved by the order of Respondent No. 1 filed O.A. No. 1687/2005 before the CAT. The CAT dismissed the said O.A. by the impugned order dated 11.12.2006. Thereafter, the Petitioner filed a Review Application, R.A. No. 36/2007, on the ground that there was an error apparent on the face of order, as the finding of the CAT - that the termination was in accordance with rules, was factually incorrect. The same was also dismissed. Consequently, the Petitioner has approached this Court being aggrieved by the order of CAT in R.A. 36/2007 and O.A. No. 1687/2005.

8. Learned counsel for the Petitioner submitted that after the Petitioner acquired temporary status, his services could not be terminated in an arbitrary manner. The Petitioner, having a temporary status, is entitled to protection under Article 311 of the Constitution of India and Railway Servants (Discipline &Appeal) Rules, 1968 (for short "Rules of 1968"), which require that a temporary status holder would be terminated after holding a disciplinary enquiry - if the same is by way of punishment. Further, since the termination of the services is on the ground of misbehaviour, a stigma is attached to it and therefore, an enquiry was required to be held before termination.

9. Learned counsel for the Petitioner has placed reliance on the judgments of this Court in Lakhi Ram vs. Union of India, W.P.(C.) No. 6070/2006 decided on 05.10.2007; Union of India vs. Dharminder Kumar Yadav, W.P.(C) 3263/2006 decided on 08.03.2006; and Vijay Kumar vs. Union of India, W.P.(C) 18407/2006 decided on 07.08.2007. This Court in the above cases has held that due procedure under the Rules of 1968 was not

followed by the employer while discharging services of the temporary employees, thereby holding the termination orders as bad.

10. Learned Counsel for the Petitioner has further relied upon the Railway Board notification P.S. No. 10960/95, which is contained in letter No.803E/I/Pt.X/EIV, issued in January 1995. In the said notification, the Board has itself issued instructions, which are to the following effect:

"ii) Person who has attained temporary status cannot be discharged from service without applying full procedure as described in the D & A Rules. The grant of ty. Status to Bungalow peons before 2 years service will create problems for the officer in case Bungalow Peon indulges in unwarranted activities. No officer will allow his family members to be dragged, in official D and A enquiring etc. Thus, condition of two years service for grant of ty. Status to Bungalow Khallasi is a must.

The above conditions are not included in the IREC or IREM as Bungalow peons is a special category as they are neither casual labour nor substitutes. Their service conditions, until they attain Ty. Status after completion of two years continuous service, are governed by the administrative orders issued from time to time with the approval of competent authority on Zonal Railways itself."

(Emphasis Supplied)

Learned Counsel submits that the Respondents had terminated services of the Petitioner contrary to their own notification, which requires them to follow procedure under Rules of 1968.

11. The Respondents, through their Counter Affidavit, have submitted that termination of the Petitioner is in accordance with the Railway Board notification P.S. No. 10960/95, as the notification states that the services of

a Bungalow Khallasi shall be terminated if work is found to be unsatisfactory. The notification provides as follows:

"The person being engaged as Bungalow Peon gives his consent in writing i.e. he/she is willing to work as a Bungalow Peon and in case of any eventuality such as his/her unwillingness to work as Bungalow Peon or he/she is found unsuitable or his/her performance is found unsatisfactory his/her services shall be terminated. The engagement of the Bungalow Peon is purely on contractual basis, extendable from time to time after every three months. On having completed two years of continuous service as Bungalow Peon, the person is granted Temporary status and becomes eligible to be screened for purpose of formation of a panel."

12. The Respondents have relied upon on a Full Bench judgment of the Tribunal, Shyam Sunder vs. Union of India O.A. No. 896/1996 decided on 12.02.1999. The Respondents submit that the services of the Petitioner were terminated on the ground of unsatisfactory work, and they even paid him one months' pay in lieu of notice. The CAT in Shyam Sunder (supra) held:

"The Bungalow Peons/Khallasis in the Railways were not Railway employees and their services being purely contractual in nature could be terminated at anytime in terms of their contract so long as they do not attain Temporary Status.

After acquisition of Temporary Status by the Bungalow Peons/Khallasis, their services can be terminated on the ground of unsatisfactory work without holding a departmental enquiry.

The termination of the services of the substitute Bungalow Peon/Khallasis who have acquired Temporary Status are 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."

13. The order of termination dated 30.04.2002, whereby the Petitioner's services were terminated due to his misbehaviour, and not obeying orders while performing his duties as a Bungalow Khallasi, inter alia, reads as follows:

"The concerned officer has found you guilty of mis-behaving during the performance of your duties as Bungalow Khallasi; it has also been found that you have not obeyed the orders many a time which shows your absent-mindedness (carelessness). You were issued warnings to improve yourself but no improvement has been found in your behaviour and work. In short, you have not been found suitable in your work performance."

(Emphasis Supplied)

It is, thus, evident from the termination order that the Petitioner's services were terminated due to alleged misbehaviour of the Petitioner, and as he did not obey orders. The termination was not on the ground of unsatisfactory work alone.

14. This Court in Lakhi Ram (supra) held that "misbehaviour" is not in relation to his work or performance related to work, it casts aspersion on his conduct, character and personality. The Court held that termination order on ground of misbehavior is stigmatic. The relevant portion is extracted as below:

"15. Whether a termination order is stigmatic or not has to be viewed from the point of view as to whether it has the effect of showing the employee in poor light in the eyes of a reasonable man, which would include a reasonable prospective employer. When the order dated 14.2.2005 would come into the hands of any prospective employer, the same would prejudice the chances of the petitioner to gain employment since he has been

branded as being a person who misbehaves and displays indecent behavior. No employer would, while making his selection like to take in employment a person who has been certified as being one whose behavior is not acceptable, and who has failed to improve his behavior despite repeated warnings. This, in our view, is clearly stigmatic since the accusation against the petitioner is that not only his work but also his behavior is unacceptable and is such that it calls for termination of his services. We, therefore, do not agree with the findings of the Tribunal that the accusation of misbehavior against the petitioner is not stigmatic."

Therefore, the submission of the Respondent that termination is on the ground of unsatisfactory work and hence, services can be terminated without holding a departmental enquiry does not hold.

15. The counsel for Petitioner has also relied upon Vijay Kumar (supra), in which this Court followed the decision of Dharmender Kumar Yadav (supra). Vijay Kumar (supra) also pertains to a Bungalow Khallasi whose services had been terminated after he acquired temporary status, the termination notice accused the employee of remaining absent from duty without intimation. The relevant extract from the said decision is to the following effect:

"No doubt, if a person is holding temporary status or is a temporary employee, his service can be dispensed with by passing an order of discharge implicate under Rule 5(1) CCS Temporary Service Rule. In case the Respondent's conduct was not satisfactory, this rule could have been invoked. However, a perusal of the impugned order shows that it is stigmatic in nature, inasmuch as, allegations have been leveled against the Respondent that his working report was found unsatisfactory, he was not able to perform his duties, he remained unauthorized absent from duty, and was found unsuitable.

The Railway Board has itself issued instructions, which are contained in letter No.803E/I/Pt.X/EIV, issued in January 1995... ... ... ... ... ... ... ...

Thus, in a case like this, as per the aforesaid instructions, procedure as contained in Disciplinary and Appeal Rules was required to be followed. In another case which arose in similar circumstances, a Division Bench of this Court upheld the order of the Central Administrative Tribunal vide judgment dated 8th March 2006, titled as UOI v. S. Dharmender Kumar Yadav, in W.P. (C) No. 3263/2006 and C.M. No. 2828-29/2006."

In these cases, the CAT held that departmental enquiry was required to be held in accordance with the procedure prescribed in the Rules of 1968, where temporary status has been granted to the Bungalow Khallasi. This Court upheld the order of CAT in the aforesaid two cases.

16. There can be no dispute that when an employee has been granted a temporary status and the order of his termination is stigmatic and punitive, and not of discharge simplicitor, then a departmental inquiry has to precede the termination. For when the order of termination is stigmatic, termination of an employee without holding a departmental enquiry would be in violation of principles of natural justice. It has severe consequences for the employee, since he gets branded and blemished with the stigmatic declaration made against him, thus marring his future prospects of employment.

17. In the present case, the termination was due to alleged misbehaviour of the Petitioner, and hence, is stigmatic and punitive. Such termination, without holding a departmental enquiry, is clearly impermissible. The Respondents should have conducted a departmental enquiry before termination of the services, thereby providing the Petitioner with an

opportunity to meet the accusations of his misbehaviour. The procedure as contained in the Rules of 1968 was required to be followed. Instead, the Respondents resorted to a short cut method by issuance of a stigmatic termination order dated 30.04.2002 and terminating his services. Since there was no departmental enquiry conducted before the termination, in accordance to the procedure prescribed in Rules of 1968, the termination order is against the principles of natural justice and hereby set aside.

18. In view of the aforesaid discussion, the writ petition is allowed and the impugned orders of the CAT, are hereby quashed. Consequently, the Respondents are directed to reinstate the Petitioner within four weeks with all consequential benefits including notional fixation and fitment of salary for the period he was out of service, though he would not be entitled to any actual arrears of salary. In other words, all consequential benefits, except back wages, shall be given to the Petitioner. The said orders of pay fixation, fitment, and notional increments, etc shall be issued within four weeks of the Petitioner's joining the service pursuant to the present order.

19. The writ petition is allowed in above terms.

VIPIN SANGHI, J

S. RAVINDRA BHAT, J DECEMBER 04, 2014