BASANT LAL SAH Vs. DIVISIONAL MECHANICAL ENGINEER

JUDGEMENT

(1.) This application by Basantlal Sah under Articles 226 and 227 of the Constitution of India is directed against an order dated 29.6.74/1.7.74 (Annexure 1) passed by the Divisional Mechanical Engineer, N.E. Railway, Katihar, (the respondent), whereby a notice under Rule 149 of the Indian Railways Establishment Code (hereinafter to be referred to as "the Code") Vol. I was given to the petitioner intimating him that his services would stand terminated from the date of expiry of one month's period of the notice from the date on which the notice was served on or tendered to the petitioner.

(2.) In order to appreciate the point involved in the application it would be necessary to state briefly the facts, The petitioner was appointed as a substituted carriage khalasi in the railway on 9.4.1969, and was continuing in service in that post for more than five years, as stated in paragraph 2 of the Writ application. He has also stated in the other part of his application that he had received increments and was medically examined for absorption in service. As a carriage khalasi he was a workman and was governed by the provisions, according to him, contained in the INDUSTRIAL DISPUTES ACT, 1947. (hereinafter referred to as "the Act") and was entitled to all the benefits thereof, including Chapter VA of the Act. It was also mentioned in the application that he was arrested on 8.5.74 and was taken into custody by Katihar police. He was lodged in jail custody on that day and was released on bail on 23.6.74. Therefore, he could not join his duty during the said period. When the petitioner went to join his duty on 28.6.74 he was not permitted to do so, and was told that his services were terminated. On 4.7.74 he received the impugned order (Annexure 1) and thereafter he filed a memorandum of appeal to the Divisional Superintendent, N.E. Railway, Katihar, on 12.7.74 (Annexure 2) who had assured him that he would be reinstated but no action was taken thereon. Therefore, the petitioner filed the present application and obtained rule on 23.8.74 He has prayed therein for quashing of the impugned order contained in Annexure "1".

(3.) On behalf of the respondent a counter-affidavit has been filed on 11.10.74 wherein it was stated, inter alia that the petitioner was appointed as casual labour (substitute) from 7.5.69 and not from 9.4.69, as stated in paragraph 2 of the writ application. It was also asserted therein (hat the petitioner was not a workman and, therefore, he was not governed by the provisions of the Act, so as to be entitled to the benefits provided therein, including the benefits under Chapter VA of the Act. In support of the impugned order it was stated that the petitioner was given one month's notice in accordance with law. The petitioner was not entitled to get anything from the railway, except his contribution to the provident fund, which the railway was prepared to pay and the petitioner might have taken the same whenever he liked.