PRAMOD KUMAR NAYAK Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal is directed against the summary rejection by the learned trial Judge of the writ petition made by the appellant Shri Pramod Kumar Nayak.

(2.) IT appears that the appellant was appointed as Trainee Ticket collector and after completing the training at the Zonal Training School, sini, South Eastern Railway, the appellant was assigned the duty of a Ticket Collector Staff at Adra Railway Station. It is the case of the appellant that one of the terms of his appointment was that on completion of training he would have to serve for a minimum period of five years, if required by the administration. The appellant contended that on 4th October, 1983, one Shri Kailash Mandal was detected travelling without ticket by the Tata Patna Express at Adra by another Ticket collector Shri Swapan Chande. As the said Shri Mandal expressed his inability to pay the railway dues on the ground that he had no money for such payment, it was decided to hand over the said Shri Mandal to the Railway Police for traveling without ticket. The said Shri Mondol was introduced to another person not belonging to the Railway administration by the appellant out of compassion and by pledging some silver ornaments with the said outsider, the said Shri Mandal produced the necessary money for the payment of railway fare and extra-charges for ticket less traveling. The appellant has contended that shortly after the said incident, he was placed under suspension and while he was in suspension, an order of termination of his service under Rule 149 of the Indian Railway Establishment Code, Volume I, was served on him by directing that in lieu of one month's notice, he should be paid one month's salary. It is the case of the appellant that such salary for one month had not been paid to him along with notice served under. Rule 149 but such salary had been paid at later point of time. As the appellant's service had been wrongly terminated by invoking the said rule 149, a writ petition was moved by him before the learned trial judge and the instant appeal has been preferred by the appellant because the said writ petition was summarily dismissed. In view of summary rejection of the writ petition, there. was no occasion for the Railway administration to file any affidavit -in -opposition to the writ petition and in order to get the relevant facts, liberty was given to the respondents to file a supplementary affidavit in the instant appeal for disclosing the relevant facts intended to be relied on in support of the said order of termination challenged in the instant appeal. The said supplementary affidavit has been affirmed by the Assistant Commercial superintendent, South Eastern Railway, Adra and it appears from the said supplementary affidavit that the appellant Shri Nayak had ho business to poke his nose when the said Shri Mondol was detected by Shri chanda for traveling without ticket at the Adra Railway Station. But shri Nayak had taken initiative, by introducing the said Shri Mandal to a shopkeeper outside the Railway Station and the silver ornaments in possession of the said Mandal were handed over to the said shopkeeper for payment of the dues of the Railway on account of such unauthorised traveling without a ticket. It has also been stated that the appellant Shri Nayak did not make any valuation of the ornaments weighing about 19 toals and two annas and he had not given any receipt to the said passenger Shri Mandal in token of the silver ornaments taken over by him. It has also been stated' that Shri Nayak allowed the said Shri Mandal to leave Adra Railway Station by a Tata Muzaffarpur express without recording his full address and obtaining signature of the passenger for identification in the register provided in the Ticket collector's Office. It has been stated in the supplementary affidavit that such an action on the part of the appellant was obviously with a view to ensure that the evidence of his misdeed and misconduct would remain unavailable. It has been stated in the supplementary affidavit that the aforesaid action on the part of the appellant amounted to gross misconduct for which a disciplinary proceeding was contemplated against him and in contemplation of the disciplinary proceeding he was put under suspension. But as the service of the appellant was a temporary one, the Railway administration chose to terminate his service by exercising the power under Rule 149 of the Indian Railway Establishment Code, Volume I.

(3.) MR. Ganguly, learned counsel appearing for the appellant has contended that on the face of the said supplementary affidavit and also from the fact that the appellant was placed under suspension after the said incident, it is patently clear that the Railway Administration had proceeded on the footing that the appellant was guilty of gross misconduct and a disciplinary proceeding was contemplated against him for such misconduct and he was placed under suspension. Mr. Ganguly submitted that Rule 149 of the indian Railway Establishment Code, volume I, clearly indicates that the termination of service of temporary railway employee cannot be resorted to under Rule 149 on the score of misconduct of the said Railway employee by giving him notice as contemplated under Rule 149. He has submitted that if the Railway administration had come to a prima facie finding that the employee was guilty of misconduct and on that score had placed him under suspension in contemplation of initiating a disciplinary proceeding, it was not permissible to terminate the service of such Railway employee by not initiating the proposed disciplinary proceeding, thereby depriving -the Railway employee to defend himself against allegations of misconduct made against him. In such circumstances, recourse to the provisions of Rule 149 for terminating the service of the temporary employee by giving the notice as contemplated in the said rule is not warranted. To appreciate the contention of Mr. Ganguly, it is necessary to refer to the' provisions of Rule 149 :