DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY CHENNAI Vs. PRESIDING OFFICER CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT

JUDGEMENT

(1.) W.P.No.23044 of 2006 is filed by the Divisional Railway Manager, challenging the order of the Central Government Industrial Tribunal-cum-Labour Court in I.D.No.274 of 2004 dated 15th December 2005. W.P.No.24473 of 2006 is filed by a dismissed temporary employee against the order of the Central Government Industrial Tribunal-cum-Labour Court dated 12.06.2001 in I.D.NO.28 of 2001. The petitioner in W.P.No.24473 of 2006 seeks a direction to the respondent Management to reinstate the petitioner in service with effect from 28.08.1992 with all consequential benefits, including arrears and back-wages for the period during which the petitioner was kept out of employment and giving other attendant service benefits to which the petitioner would be entitled to in law. It may be noted that in both these writ petitions, the employee concerned was taken in service as Substitute Bungalow Lascar.

(2.) THE issues raised in both these writ petitions are substantially same as to and when an order of termination could be called stigmatic that the employer has to comply with the requirement of Article 311(2) of the Constitution of India and follow the procedure of holding enquiry before visiting the employee with an order of dismissal by way of punishment and whether a contract employee, being a temporary employee, is entitled to the protection of Article 311 of the Constitution of India.

(3.) WHERE the competent authority accepts the report and determines tentatively that the punishment should be inflicted, then it communicates a copy of the report to the enquiry officer and its own conclusion and issues a show cause notice as to why the tentative punishment should not be inflicted upon him. The servant concerned has an opportunity of making his representation on the conclusions arrived at by the departmental authority as well as the punishment imposed. The Apex Court pointed out that when a preliminary enquiry is held, the same is not to be confused with a regular departmental enquiry. As far as preliminary enquiry is concerned, there is no question of being governed by Article 311(2) and the preliminary enquiry can be held ex parte, since it is merely for the satisfaction of the Government. However, when the Government decides to hold a regular enquiry for the purpose of inflicting one of the three major punishments, then the Government servant gets the protection of Article 311(2) of the Constitution of India. The Apex Court pointed out that the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service Rule is irrelevant. Thus where a mere preliminary enquiry is held and following the enquiry, the services are dispensed with in accordance with the contract or specific Rule, the same would not mean termination of the service as amounting to a punishment within the meaning of Article 311(2) of the Constitution of India. Whether such termination would amount to dismissal or removal as a punishment, depended upon the facts of each case. The sum and substance is that where the termination, dismissal or removal from service is to act as a penalty or a punishment which stigmatizes the delinquent Government servant, necessarily the intended action has to conform to Article 311(2) of the Constitution of India.