CIVIL WRIT JURISDICTION CASE No.16201 OF 2007 Against the order and judgment dated 30.08.2007 passed by Central Administrative Tribunal, Patna Bench, Patna in O.A. No.395 of 2006. --------- 1. The Union Of India through General Manager, Metro Railway, 33/1, Jawaharlal Nehru Road, Kolkata-700 071. 2. Joint Director (Complaint), Ministry of Railways, Rail Bhawan, New Delhi 3. Dy. Chief Electrical Engineer (Project), Metro Railway, Kolkata 4. Dy. Chief Personal Officer, Metro Railway, Kolkata 5. FA & CAO, Metro Railway, Kolkata…………………………Petitioners Versus Saroj Kumar Rai son of Sri Kapil Deo Rai, Resident of Village-Narapur (Dharampur) P.O. Bachwara, District-Begusarai…………………Respondent ----------- For the petitioners : Sri Siddhartha Prasad, Railway Advocate For the Respondent :Sri M.P. Dixit, Advocate Sri Sanjay Kumar Dixit, Advocate Sri Sanjay Chaudhary, Advocate P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA Shiva Kirti Singh & Birendra Prasad Verma,J.J Heard learned counsel for the petitioners who are Union of India and the officials of Ministry of Railways and of Metro Railway, Kolkata and also heard learned counsel of the sole respondent, the workman. 2. By the impugned order dated 30th August 2007 the learned Central Administrative Tribunal, Patna Bench, Patna allowed O.A. No. 395 of 2006 preferred by the respondent-employee. As a result the order of termination of his service vide order dated 25.01.2006 has been quashed and the following relief has been granted:- 2 “ In the result, this application is allowed to the extent that the order of termination of services of the applicant vide order Annexure-2 is hereby quashed. The applicant will be reinstated immediately to his post. The official respondents, however, would be free to proceed against him under the provisions of Railway Servants (Discipline & Appeal) Rules, 1968. If the respondents decide to take departmental action against him, then after departmental action concludes, the respondents will also decide about the back wages for the period under which the applicant had remained without service. If no departmental action is taken against him after his reinstatement under this order then, though he will not be paid entire back wages, as he had not worked during that period, the applicant will be paid a lumpsum of Rs.10,000/- as compensation. This application, therefore, is allowed to the extent as mentioned in this order. No costs.” 3. The respondent-employee was engaged as Substitute Bungalow Peon vide order dated 21.7.2005 issued under signature of Assistant Personnel Officer, Metro Railway, Kolkata against an existing vacancy of Construction Wing in the Electrical Department/Metro Railway, Kolkata. 4. A serious dispute arose after the respondent-employee was terminated by order dated 25.01.2006 as to whether his termination without notice and without any proceeding was valid or not. According to the relevant paragraph-1515 of Indian Railways Establishment Manual, Volume-1 (IREM, Vol-1) if the employee had worked as Substitute Bungalow Peon for more than 120 days and had acquired temporary status then his services could not have been terminated without following 3 the procedure laid down under Railway Servants (Discipline & Appeal) Rules, 1968 but the authorities claimed that the employee had absented from 2.11.2005 to 7.11.2005 without authorized leave and therefore he had not completed 120 days of continuous service and was not entitled to automatic grant of temporary status. On that basis it was the case of the authorities that the employee could be terminated without notice. 5. The learned Tribunal applied itself to the relevant facts including attendance chart, salary etc and came to a finding that in fact the employee had completed more than 120 days of service as a Substitute Bungalow Peon. On that basis it was held that the termination order passed against the employee on 25.01.2006 but w.e.f. 12.12.2005 was bad in law. The Tribunal further held in paragraph-31 that the applicant had been terminated on the basis of alleged misconduct i.e., unauthorized absence as also complaints about his work as pleaded in the written statement and since he had completed more than 120 days continuous service, he could not have been terminated without issuance of memo of charge against him and without conducting a departmental enquiry against him. 6. On looking into the relevant materials, we find that the alleged unauthorized absence of the respondent-employee was reported by the Controlling Officer through a letter dated 24.11.2005 (Annexure-3) to 4 this writ petition. That is after he had completed on paper more than 120 days of service from 22.07.2005. The attendance chart clearly shows that presence of the employee on the relevant days was marked but subsequently it was cut and changed to show absence. In such facts and circumstances, we find no good reasons to interfere with the finding of fact given by the learned Tribunal that the respondent-employee worked for more than 120 days continuously. 7. Learned counsel for the petitioners placed reliance upon a revised scheme governing Engagement of fresh face Substitute Bungalow Peon issued on 24.11.2004, a copy whereof has been annexed as Annuxure-7 to the writ petition. In paragraph-1 (f) it has been provided that Bungalow Peons will be engaged as substitute in the prescribed scale for a period of four months only at the first instance and will be extended further on receipt of a certification from the Controlling Officer that the services of the concerned employee are satisfactory and that he can continue further and after that only the Bungalow Peon will be eligible for grant of temporary status on completion of 120 days continuous service entitling the employee to the privilege of a temporary railway servant. On the basis of aforesaid provision in the scheme it has been submitted that even if the employee completed more than 120 days of continuous service, in absence of a certification from the Controlling Officer he could 5 not have continued beyond four months. 8. In reply to the aforesaid submission, learned counsel for the respondent has placed reliance upon provisions in paragraph-1515 of IREM Volume-1 which does not mention of initial recruitment being limited to four months or need of any certification from the Controlling Officer. According to learned counsel for the respondent-employee, the provisions of the Manual are known to the employees who are governed by those provisions whereas the revised policy for engagement of fresh substitute Bungalow Peons, contained in Annexure-7 is a Circular letter which is to guide the all Heads of Department, Metro Railway, Kolkata . In absence of any indication in the appointment letter contained in Annexure-1 to the writ petition that the engagement was initially only for four months, according to the learned counsel for the respondent, the petitioners cannot take advantage of their internal communication by way of a revised policy when as a fact at initial stage they engaged the respondent-employee not for a limited period of four months and also treated his engagement to be continuous beyond four months even in absence of a certification, as would be clear from the fact that his service has been terminated from a much later date. 9. Having considered the aforesaid rival submissions, we are of the view that the executive instructions in the form of a revised 6 policy contained in Annexure-7 was for guidance of the authorities. Further, if they had acted as per the policy they probably could have taken advantage of the same by arguing that their action was supplemental but not contrary to the provisions in the IREM, Volume-1. But facts are different. On facts it is found that the provisions in the policy which was recently revised in November 2004 have not been followed by the authorities which is apparent from the engagement letter dated 21.7.2005 contained in Annexure-1 to the writ petition as well as from subsequent conduct of the authorities. In such circumstances, the employee has rightly been given benefit of provisions in IREM, Volume-1. 10. In the aforesaid facts and circumstances, it is not possible to hold that in the alleged absence of a certificate from the Controlling Officer regarding satisfactory service, further extension and continuation of the respondent-employee was itself invalid. Hence, we find no good ground to take a different view so as to interfere with the relief granted to the respondent-employee by the Tribunal. 11. However, another issue remains to be noticed. In paragraph-31 the learned Tribunal has held that the termination was on the basis of alleged misconduct i.e., unauthorized absence and complaints about his work. In this regard, learned counsel for the petitioners has taken us through the order of termination dated 25.1.2006 contained in 7 Annexrue-5 to this writ petition. The same clearly shows that it is an order of termination simplicitor without raising any allegations either of unauthorized absence or of misconduct. Simply because the factual background was revealed by the petitioners to explain why they took a view that the employee had not completed 120 days of continuous service and further that the certificate of the Controlling Officer was to the effect that the service was unsatisfactory, it cannot be held that the termination order was based upon allegations of misconduct. 12. With the above clarification, the writ petition is dismissed. There shall be no order as to costs. Patna High Court Dated the 20th of July 2010 AFR/Md. Perwez Alam. (Shiva Kirti Singh, J.) (Birendra Prasad Verma,J.)