DULAL PAL Vs. DIVISIONAL SUPERINTENDENT, EASTERN RAILWAY

JUDGEMENT

(1.) The Petitioner in this Rule challenges the termination of service by the Railway authorities. It is alleged that the Petitioner was appointed by the Divisional Engineer in or about the year 1958 as a gangman in the permanent post in Class IV service at a monthly pay of Rs. 52. The said pay was revised and the Petitioner's appointment was made permanent and confirmed in 1961. It is alleged that the Petitioner was not appointed to hold a temporary post or to officiate in a permanent post. The Petitioner was appointed in a permanent post and he has a right to hold the post till the age of superannuation. It appears that the permanent Way Inspector, Bongaon, to appoint some new hands terminated the service of the Petitioner on the allegation that the Petitioner was not fit for the said post. It is alleged that no charge-sheet was issued to the Petitioner and no enquiry was held against the Petitioner. On being apprehensive, the Petitioner through his Advocate made a demand of justice. On receipt of the said letter the Respondent No. 5, it is alleged, became furious and terminated the Petitioner's service. Being aggrieved by the said order of termination the Petitioner moved this Court and obtained the present Rule.

(2.) In the affidavit-in-opposition filed by the Respondent it has been denied that the Petitioner was a permanent gangman. It is stated that the Petitioner was a casual labourer and, on completion of six months' continuous service, he was entitled to the privileges extended to temporary staff. The Petitioner is a casual labourer with temporary status. It is denied that the Petitioner had any right to hold the post. It is stated that the Petitioner was appointed as a casual labourer from time to time. He was appointed in a substitute vacancy on May 16, 1962, and his appointment was not confirmed. It is stated also that the Petitioner along with other gangman of equal status was replaced on January 26, 1967, to accommodate permanent gangmen who became surplus with the stoppage of train service between India and Pakistan. It is further stated that the Petitioner appeared in 1965-Selection for recruitment in regular vacancy but was not successful. As the Petitioner is a casual labourer, the question of application of the provision of Article 311 of the Constitution of India in respect of the termination of the Petitioner's service does not arise.

(3.) Mr. Samanta on behalf of the Petitioner contended two points for consideration in this case. Firstly, he contends that the Petitioner is a permanent employee and his service cannot be terminated in the way as in the present case. On the face of the affidavit, it cannot be said that, the Petitioner is a permanent Railway servant. Mr. Samanta thereafter contended that, assuming the Petitioner is a casual labourer, he was working more than 6 months and, therefore, he has acquired the temporary status and, as such, in order to terminate his service, the provision of para. 149 of the Railway Establishment Code, vol. 1, should have been followed or that the Petitioner should have been given 14 days' notice before his service was terminated, but no such notice admittedly was given. Therefore, the termination of the service of the Petitioner is bad in law. Though in the petition upon which the Rule was issued, the Petitioner does not at all over that the Petitioner was a casual labourer; he argued that the Petitioner on having completed 6 months' service has acquired temporary status, and his service cannot be terminated at all. The relevant provision for the casual labourer is to be found in paras. 2501, 2503 and 2505. From those paragraphs it is found that a casual labourer retained for more than 6 months continuously would be treated as temporary after the expiry of the said continuous employment of 6 months. In para. 2505 it has been stated that, except where it is necessary under the statutory rule, no notice is required for the termination of the service of the casual laborers, their service will be deemed to be terminated when, they absent themselves or on the close of the day. Note to the said paragraph makes it clear that in case of a casual labourer who is treated as temporary after the 6 months' continuous service, the period of notice will be determined by the rules applicable to the Railway service. It appears to me that these paragraphs came for consideration before the Division Bench of this Court in Biswanath Mukherjee v. Union of India,1970 75 CalWN 284 . The Division Bench of this Court held, inter alia, that the definition of the Railway servant does not include casual laborers. Secondly, that no notice is required to terminate the service of the casual labourer in absence of any statutory provision. As the casual laborers arc not Railway servants no rule can be framed under Rule 157 for casual laborers and that the casual laborers, therefore,' do not hold any civil post. As the casual laborers are not Railway servants, para. 149 of the Railway Establishment Code, which applies to persons holding temporary service, does not apply to the casual laborers. In view of the Division Bench judgment it cannot now be argued that the casual labourer is entitled to notice under para. 149 of the Indian Railway Establishment Code, vol. 1, and that in the absence of the notice the order of termination is bad.