IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17186 of 2010 KANAHAIYA @ KANHAIYA SON OF SRI JAI NARAYAN CHAUDHARY BUNGLOW KHALASI OF DRM. S.E. RAILWAY, ADRA, RESIDENT OF VILLAGE – NAYATOL, P.O.-AGAPUR, VIA MANSUCHAK, DISTRICT BEGUSARAI ...PETITIONER Versus 1. THE UNION OF INDIA THROUGH, G.M., S.E. RAILWAY, GARDEN REACH, KOLKATA 2. THE DRM, S.E. RAILWAY, ADRA 3. THE DRM (P), S.E. RAILWAY, ADRA 4. SRI P.K. ROY, THE DRM, S.E. RAILWAY, ADRA ..RESPONDENTS ----------- For the petitioner: Mr. M. P. Dixit, Advocate For the respondents 1 to 3: Mr. Anil Singh, Advocate ---------- 2 11-10-2010 Heard the parties. Petitioner has preferred this writ petition against order of learned Central Administrative Tribunal, Patna Bench, Patna dated 29-9-2010 whereby O.A. no. 863/04 has been dismissed. The relevant facts are not in dispute. The petitioner was appointed as substitute Bungalow Khalasi on 6-8-2002 and he joined the post on that date. After completion of 120 days of continuous service he was conferred temporary status from 4-12-2002. He had a satisfactory service while working with DRM, E.C. Railway, Danapur and on that basis prior to his transfer to S.E. Railway Adra his case was sent for screening, empanelment and regularization. Upon his transfer the 2 petitioner joined on 25-8-2004 at Adra. Before he could complete three years of service, an adverse report was made against him that after a brief illness he did not report for joining at time. The adverse report against the petitioner has been annexed as annexure-12 dated 15-10-2004 whereby the DRM, Adra has reported that the petitioner was absconding from duty; he was insincere and disobedient and had proved to be thoroughly incompetent to discharge his duties. On the basis of such report by the order under challenge before the Tribunal dated 15-10-2004 contained in annexure-11, the services of the petitioner had terminated with immediate effect in terms of para 1502 read with para 1515 of I.R.E.M 89 (Vol-I) after mentioning that the termination was on grounds of his insincere, undisciplined and disobedient behaviour, his incompetence and irresponsibility in discharging his duties and his unauthorized absence from duty as communicated by DRM, Adra through his letter dated 15-10-2004. Learned Tribunal has noted all the relevant facts including relevant provision in Rule 1502 which 3 has been extracted in paragraph 12 of the impugned order of Tribunal. The said rule is clearly in two paras. The first para mentions that a person who does not hold a lien on a permanent post and was appointed to hold a temporary post or to officiate in a permanent post, is not entitled to any notice for termination of his service, if such termination is on account of expiry of the sanction of the post or the expiry of officiating vacancy or due to his compulsory retirement on account of mental or physical incapacity or due to his removal or dismissal as a disciplinary measure after compliance with the provisions of Clause [2] of Article 311 of the Constitution of India. The second part of the Rule 1502 provides that if the termination is due to some other cause, the employee shall be entitled to one month’s notice if he was engaged on a contract for a definite period and there is no other period of notice provided in the contract. The notice period of 14 days has been provided in case the employee was not engaged on contract. Temporary railway servants with over three years of continuous 4 service have been held entitled to a month’s notice. On noticing the allegations made against the petitioner and the contents of the termination order, the learned Tribunal came to a conclusion that the services of the petitioner was terminated due to some other cause mentioned in the 2nd part of Rule 1502(1). Learned counsel for the petitioner has submitted that the aforesaid conclusion arrived at by the Tribunal is erroneous in view of clear allegations against the petitioner that he was absconding and was unauthorizedly absent from duty. On consideration of the facts and the aforesaid submission, we are of the considered opinion that the allegations made against the petitioner in annexure-12 which is basis for the order of termination contained in annexure-11 are not mere incidental mentioning of his incompetence but they constitute clear allegations which must be made a charge for holding a proceeding against the petitioner in order to arrive at the correctness or otherwise of the allegations. The allegations are not incidental but formed the basis for the order of 5 termination. In such circumstances, the law laid down by the Apex Court in the case of National Aviation Company of India Vs. S.M.K. Khan [2009] 2 SCC [L&S] 1 is not attracted. According to that judgement only an incidental reference to any unsatisfactory service or any remarks in the context of explaining the reason for compulsory retirement will not be taken as stigmatic though out of context it may be construed as allegations of misconduct. The law laid down in the aforesaid judgement was in the context of compulsory retirement and has not been properly considered by the learned Tribunal. In the facts of the case, we have no other option but to hold that the charge of unauthorized absence which formed basis for termination of service of the petitioner cannot be used for termination simplicitor. Hence, the impugned order passed by the Tribunal is set aside and the order of termination contained in annexure- 11 dated 15-10-2004 passed against the petitioner is also quashed. The writ petition is allowed to the aforesaid extent. 6 It goes without saying that, if so advised, the respondent authorities may initiate a proceeding against the petitioner in accordance with law. BKS/- (Shiva Kirti Singh, J.) (Hemant Kumar Srivastava, J.)