1. The petitioner joined the Western Railway service on 17th August, 1972 as a Khalasi and served at Viramgam upto 3rd June, 1978 when his service has terminated by the impugned order, Annexure 'H' dated 1st June, 1978. That order recites that his services shall stand terminated with effect from 3rd June, 1978 (A.N.) on account of misconduct, namely (i) fraudulent use of duty pass No. B. 585078 (ii) impersonation as Dhansukhlal and (iii) misrepresentation to CCS-CCG. It was clarified by the said order that he was not eligible to notice pay and/or retrenchment compensation under the Industrial Disputes Act, 1947. It is against this order that the petitioner has preferred the present petition. The facts giving rise to his petition briefly stated are as under.
2. After the petitioner joined service as Khalasi in 1972, he worked as such at Viramgam upto the beginning of June, 1978 without any break in service. On 20th May, 1977 he left for Bombay by the 6 Up train and reached Bombay on the morning of 21st May, 1977. While he was travelling by the said train the ticket checker found that he was not holding a regular ticket and was travelling on railway pass issued to one Dhansukhlal. It is the case of the petitioner that he travelled on the said pass at the instance of respondent No. 4 as respondent No. 4 had desired him to attend to his private work at Bombay. He states that on that account even though he was not at Viramgam on 21st May, 1977 he was marked present, but, that entry was subsequently changed to 'not present' after the fact of his having been caught by the ticket checker became known to respondent No. 4. It is his allegation that subsequently as the respondent No. 4 apprehended that he may come to trouble, efforts were made to hush up the matter and certain statements were obtained from him under duress. He has further alleged that thereafter wheels began to move in the direction of removing him from service and ultimately he was served with a show cause notice on 5th April, 1978 to which he sent a reply on 8th April, 1978 and without holding a regular inquiry against him, he was unceremoniously removed from service by the impugned order of 1st June, 1978. He, therefore, challenges the impugned order firstly on the ground that since he had worked as a Khalasi (Casual Labour) from 1972 to 1978 without a break, he was entitled to the status of a temporary servant and, therefore, he could not have been removed/dismissed from service for misconduct without holding a regular enquiry against him. He further states that even after this incident since he was never on unauthorized leave there was no break in service and, therefore, the offer contained in the letter of 10th January, 1978, Annexure 'C', to continue him on daily wage of Rs. 4.75 was clearly unacceptable to him and contrary to the rules governing his service. He further avers that even though the Chief Commercial Superintendent had by his order dated 21st November, 1977. Annexure 'B', condoned his action in travelling on the duty pass issued in the name of Dhansukhlal and another, respondent No. 3 at the behest of the respondent No. 4 issued the show cause notice dated 5th April, 1978 and ultimately terminated his service by the impugned order of 1st June, 1978. It is, therefore, his case that the impugned order is illegal and contrary to the rules governing his service. Alternatively, he contends that the punishment meted out to him is too harsh and disproportionate to the lapse forming the basis of his dismissal from service.
3. On behalf of the railway administration the Executive Engineer (Construction) has filed an affidavit-in-reply wherein he points out that since the petitioner was a casual labourer as defined in Rule 2501(a) read with 2501(b)(ii) of Indian Railway Establishment Manual (hereinafter called 'the Manual') he could not be said to be a temporary railway servant as defined in Rule 2301 of the Manual and, therefore, there was no need to hold a regular inquiry before terminating his service. He, however, admits the fact that the petitioner's service was terminated by way of punishment for proved misconduct.
4. Referring to the incident of 20th May, 1977 it is stated that the petitioner travelled on the pass issued to Dhansukhlal and on being caught by the ticket checker, he remitted a sum of Rs. 51.60 for which the Station Master issued a regular receipt No. 572606 to him. It is denied that the railway pass was delivered to him by respondent No. 4 to enable him to carry out a personal errand for the latter. While admitting that he was marked present on 21st May, 1977 it is explained that when the respondent No. 4 visited the site, he did not see the petitioner but thinking that he must have gone to the yard, marked him present. However, subsequently when he realised that the petitioner was not present he corrected the muster sheet and marked him not present. On the application of the petitioner that he was absent due to dysentery, his leave for 21st May, 1977 was sanctioned by respondent No. 4. The railway administration also relies on the statement of the petitioner recorded by the ticket checker at Bombay as well as his statement in the form of a letter dated 20th July, 1977 and a mercy petition addressed to the Chief Commercial Superintendent, Bombay, dated 21st November, 1977. It is denied that these statements were obtained from the petitioner under duress. Reliance is also placed on the petitioner's application dated 12th December, 1977 addressed to the Assistant Labour Commissioner complaining about his being paid a wage of Rs. 4.75 per day instead of Rs. 9.83 per day. The Assistant Labourer Commissioner does not appear to have taken any action on that application. In the background of these facts it is contended by the railway administration that the since the guilt was clearly established, the impugned order came to be passed terminating the service of the petitioner.
5. The fact that the petitioner was working as a casual labourer (Khalasi) from August 1972 till the date of termination of his employment on the 3rd June, 1978 is not disputed. So also the averment that there was no break in service has not been challenged. Under Rule 2501 of the Manual, casual labour means labour whose employment is seasonal, intermittent, sporadic or extends over short periods. Such labour is not liable to transfer and the conditions applicable to permanent and temporary staff do not apply to such labour. However, such labourers are entitled to rights and privileges statutorily admissible under different statutes, such as, Minimum Wages Act. Workmen's Compensation Act, etc., or those specifically sanctioned by the Railway Board from time to time. Under Rule 2505, the service of the casual labour can be terminated without notice unless there is a statutory obligation to the contrary. However, Rule 2511(a) on which considerable reliance is placed by the learned counsel for the petitioner, reads as under :-
''2511. (a) Casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Indian Railways Establishment Manual. The rights and privileges admissible to such labour also include the benefits of the Discipline and Appeal Rules. Their service, prior to the date of completion of six months' continuous service, will not, however, count for any purposes like reckoning of retirement benefits, seniority etc. Such casual labourers will also be allowed to carry forward the leave at their credit to the new post on absorption in regular service.'
Rule 2501(b)(i) provides that such of those casual labourers who continue to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment. It is, therefore, clear on a cojoint reading of the above rules that the petitioner who had worked as a casual labour for almost six years at a stretch without break had acquired the status of a temporary servant and was, therefore, entitled to the rights and privileges admissible to such servants, including the benefits/protection of the Discipline and Appeal Rules. Break in service has been explained in Rule 2504 and authorised absence for a period not exceeding 15 days during the preceding six months is not to be considered break in service. The Note below Rule 2504 states that unauthorised absence or stoppage of work or the intervening period when the workman on his own changes from one work to another will be treated as a break in continuity of employment. In the present case there is nothing on record to show that the petitioner had during his tenure from 1972 to 1978 been guilty of unauthorised absence, stoppage of work or change from one work to another on his own accord. In fact, the learned counsel for the railway administration had to concede that prior to the issuance of the show cause notice, Annexure 'D', dated 5th April, 1978, the record did not disclose unauthorised absence or authorised absence, exceeding six months. On the contrary, the letter of 10th January, 1978 shows that he was an authorised absence during the periods mentioned therein. There can, therefore, be no doubt that the status of a temporary servant was conferred upon the petitioner on a combined reading of Rule 2501(b)(i) read with Rule 2511(a) of the Manual.
6. At this stage it may be advantageous to refer to the decision of the Supreme Court in L. Robert D'Souza v. Executive Engineer, Southern Railway (1982-I-LLJ-330). The facts of that case reveal that D'Souza joined service as a gangman on 1st July, 1948 and in the course of his service he was transferred to various places. He was last working as a Lascar at Ernakulam on 8th October, 1974 when he was intimated by the Executive Engineer (Construction) that his services were deemed to have been terminated from 18th September, 1974, from which date he was said to have absented himself from duty. D'Souza had rendered continuous service for a period of 26 years and complained that the railway administration had wrongfully refused to confer on him the status of a temporary servant. Dealing with this complaint, the Supreme Court after referring to Rules 2501 and 2505 of the Manual observed in paragraph 10 of the judgment as under at p. 338 :
'The test provided is that for the purpose of determining the eligibility of casual labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particularly gang or group of labourers. It is thus abundantly clear that if a person belonging to the category of casual labour employed in construction work other than work-charged projects renders six months' continuous service without a break, by the operation of statutory rule the person would be treated as temporary railway servant after the expiry of six months of continuous employment. It is equally true of even seasonal labour. Once the person acquired the status of temporary railway servant by operation of law, the conditions of his service would be governed as set out in Chapter XXIII.'
As I have pointed out earlier, Rule 2511 in terms states that the rights and privileges admissible to such labour shall also include the benefits of the Discipline and Appeal Rules. Under Rule 6 of the Railway Servants (Discipline and Appeal) Rules (for short 'the Rules') the penalty of removal/dismissal from service is a major penalty which can be visited after following the procedure laid down in Rules 9, 10 thereof. Under the said Rules whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a railway servant, it may itself inquire into, or appoint an authority to inquire into, the truth thereof. When it is proposed to hold an inquiry the disciplinary authority must draw up or cause to be drawn up (i) the substance of the imputations of misconduct or misbehavior into definite articles of charge (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain : (a) a statement of all relevant facts including any admission or confession made by the railway servant; and (b) a list of documents by which and list of witnesses by whom the articles of charge are proposed to the substantiated. After the copies of the above documents have been delivered to the railway servant, he must be given an opportunity to file a written statement of his defence within ten days or such further period as the disciplinary authority may allow. After the written statement and list of defence witnesses, if any, are received, the disciplinary authority must consider the same and decide whether the enquiry should be proceeded with under the Rules. If the articles of charge are admitted by the railway servant in his written statement of defence, the disciplinary authority is required to record its findings on each charge, after taking such further evidence as it may think fit and shall act in the manner provided by Rule 10. If no written statement of defence is submitted by the railway servant, the disciplinary authority is required to inquire into the articles of charge or may, if it considers it necessary to do so, appoint an inquiring authority for the purpose under intimation to the railway servant. The inquiring authority will call upon the railway servant to appear before it on the specified date and if the railway servant fails to appear, he may require the presenting officer, if any, to produce the evidence by which he proposes to prove the articles of charge etc. On the date fixed for inquiry, the oral and documentary evidence by which the articles do charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority, the witnesses shall be examined by or on behalf of the presenting officer, if any, and may be cross-examined by or on behalf of the railway servant. After the case of the disciplinary authority is closed, the railway servant shall be required to state his defence orally or in writing as he may prefer. If the defence is made orally, it has to be recorded and the signature of the employee obtained. The evidence on behalf of the railway servant must then be adduced. The railway servant may examine himself in his own defence and may also call witnesses in support of his defence. After the railway servant has closed his case, the inquiry authority must hear the presenting officer and the railway servant and after the conclusion of the inquiry, submit a report to the disciplinary authority along with the record. Rule 10 lays down the procedure to be followed by the disciplinary authority on receipt of the report. If the disciplinary authority agrees with the findings of the inquiry authority, it may proceed to impose the penalty it considers appropriate. Indisputably the procedure outlined was not followed in the present case.
7. After the show cause notice was served on the petitioner which indicated that the disciplinary authority proposed to impose the major penalty of removal/dismissal from service, the petitioner sent his reply on 8th April, 1978. Now in the show cause notice the main charge against the petitioner was the misuse of the railway pass issued in the name of Dhansukhlal plus one Khalasi by the petitioner. It is true that in the reply to the show cause notice, Annexure 'E' the petitioner has not dealt with this charge as all. It is however pertinent to note that this show cause notice was not accompanied by the statement of imputation of misconduct or misbehaviour in support of the article of charge. Even though the petitioner did not specifically deal with the charge contained in the show cause notice, his silence could not be interpreted as admission of guilt and it was therefore, incumbent on the disciplinary authority to proceed with the inquiry in the manner laid down in Rule 9 before visiting the petitioner with the penalty of termination of service. As pointed out earlier, the rule itself contemplates that if the railway servant fails to file his written statement of defence, the disciplinary authority must inquire into the articles of charge before visiting the delinquent with any major penalty. Therefore, even if the petitioner failed to answer or deal with the charge in his written statement of 8th April, 1978 it did not absolve the disciplinary authority of the railway from holding an inquiry against the delinquent on the said charge. Instead of holding an inquiry the services of the petitioner were terminated by the impugned order of 10th May, 1978. Before terminating the service, it is interesting to note that the respondent No. 3 wrote a letter dated 3rd May, 1978 wherein he made the following statements in paragraphs 4 and 7 thereof :-
'(4) The explanation submitted by you vide your application No. Nil dated nil in regard to fraudulent use of 2nd class duty check pass No. 535008 is not satisfactory and as such show cause notice was issued to you under this office letter No. SUNR/E/523/1NP dated 5th April, 1978.
(7) Although show cause notice was issued to you on 5th April, 1978 you have not cared to reply in regard to fraudulent use of duty check pass No. 585078 issued by PW1(C)VG from VG to Bombay Central and back in favour of Dhansukhlal N. Store Khalasi.'
Thereafter respondent No. 3 proceeds to state that the petitioner had committed the offences of impersonation as Dhansukhlal, fraudulent use of duty pass, tampering of duty pass before use and misrepresentation to the CCS-CCG. It is thus clear from the statement made in paragraph 7 of this letter that even the railway administration thought that the petitioner had failed to reply to the specific allegation of fraudulent use of duty pass issued in the name of Dhansukhlal. In other words, respondent No. 3 thought that the petitioner was silent so far as this charge is concerned, but he did not interpret the silence as admission of guilt. If that is clear it was not open to the railway administration to conclude without an inquiry as contemplated by rule 9 that the charges of fraudulent use of pass, impersonation and mispresentation were established Consequently it was not open to the railway administration to terminate the services of the petitioner who had acquired the status of a temporary servant.
8. It was however urged by the learned counsel for the railway administration that after the incident in question, the petitioner had given a statement to the ticket checker and had subsequently addressed a communication dated 20th July, 1977 and a mercy petition dated 21st November, 1977 wherein he had clearly admitted the alleged misconduct. Assuming for the sake of argument that this statements were voluntarily made, though the delinquent alleges that they were obtained under duress, such statements would only form the basis of evidence which could be used against the delinquent at the departmental inquiry. It was after these statements or communications were made to the railway administration that the railway administration decided to serve petitioner with a charge sheet on 5th April, 1978. Under Rules 9(6) of the rules the statement of imputation of misconduct or misbehaviour in support of the article of charge must include all the relevant facts including any admission or confession made by the railway servant. This clearly shows that admissions or confessions made by the railway servant are merely pieces of evidence which can be relied upon in the course of the departmental inquiry by the presiding officer. Only when they are relied upon can the petitioner challenge them as having been obtained under duress. The petitioner would otherwise have no opportunity to point out that these statements were not voluntary and were obtained under circumstances which could be described as coercive. It is, therefore, difficult to acceede to the submission of the learned counsel for the railway administration that in view of the admissions made by the petitioner in the aforesaid documents it was not necessary for the department to go through the rigmarole of a regular departmental inquiry before terminating the services of the petitioner, a temporary railway servant. It is by now well settled that even the services of a temporary servant cannot be terminated by way of punishment for alleged misconduct unless the misconduct is established at a regular departmental inquiry held against him. I am, therefore, of the opinion that the impugned order of 1st June, 1978 Annexure 'H', cannot be sustained.
9. Having come to the conclusion that the dismissal of the petitioner is wrongful, the next question is whether his reinstatement should be with back wages. The services of the petitioner came to be terminated with effect from 3rd June, 1978. Once the dismissal order is quashed and struck down, the petitioner would be entitled to reinstatement in service as if there is no break in service. However, for the intervening period between the date of termination of service and the date of actual reinstatement in service, the petitioner would ordinarily be entitled to back wages unless it is shown that during the said period he was gainfully employed elsewhere. In order to mould my order regarding back wages, I inquired of the petitioner who was present in Court yesterday as to whether he had taken up any other employment after his services were terminated by the impugned order, Annexure 'H'. He frankly told me that he had been employed by Reliance Textile Industries from 1st September, 1979 and that the total emoluments that he received were more than what he would have received had he continued to serve the railway administration as a temporary employee. In view of this statement made by the petitioner before me. Mr. Abichandani, the learned counsel for the petitioner, frankly stated that he would be entitled to back wages from the date of the termination of his service till 31st August, 1979 with all benefits. Even the learned counsel for the railway administration could not dispute this claim once the order of termination was found to be unsustainable.
10. In the result, this petition succeeds. The order of termination, Annexure 'H' dated 1st June, 1978 is struck down and quashed. The petitioner will be deemed to be in service without a break and will be reinstated in service forthwith, not later than one month from today. If the petitioner does not accept employment within fifteen days after he is served with the order of reinstatement, the authorities will be free to proceed in accordance with law and rules. The railway administration will pay the full back wages to the employee from the date of the termination order till 31st August, 1979 with all benefits available to him under the rules. The rule is made absolute accordingly with costs.