Kanta Bhatnagar, J.
1. These three special appeals under Section 18 of the Rajasthan High Court Ordinance, 1949 have been preferred against the common order passed by the learned Single Judge of this Court on November 8, 1982. deciding the three writ petitions filed by the three respondents in these three special appeals.
2. The learned Single Judge by the aforesaid order quashed the impugned order (Ex. 1 in the writ petition filed by Karan Singh and Ex. 2 in the writ petitiona filed by Deva Ram and Lekh Raj) passed by the Divisional Personnel Officer, Northern Railway. Jodhpur, in the month of March, 1981, Respondent Karan Singh was employed as Driver Grade 'C' and Lekh Raj and Dewa Ram were employed as shunters. All the three were posted in the Loco Running Shed Jodhpur. Certain employees in the Loco Running Shed of Jodhpur Division of the Northern Railway Commence an agitation in the last week of January and first week of February, 1981 with a view to press the demands with regard to their conditions of service and for amolearation thereof. About 805out of 908, employees did not report on duty from February 2, 1981. The said agitation was called off on February 25, 1981 The respondents remained, absent from duty from February 2, 1981, till February 25, 1981 and returned to their duty on February 26, 1981 at 9.00 Hrs. In the month of March, 1931 the Divisional Personnel Officer, Northern Railway, Jodhpur issued the aforesaid impugned order directing that the Drivers, Shunters and Fire-men whose names were mentioned in the list appended to the said order, were un-authorisedly absent from their duty during the priod from Feberuary 2, 1981 to February 25, 1981, and for that reason it was ordered that their earned leave be forfeited the date of increment be postponed and the benefit of their earlier service be denied to them for purpose leave, passes, qualifying service and pensionary bent fats, he names of the respondents were included in the list appended to the said order It was that order which caused grievance to the respondents, and they filed the writ petition under Article 228 of the Constitution of India in this Court with the prayer that the impugned order be declared illegal and quashed and the appellants (respondents in the writ petitions) be directed to give all pen sionary benefits to them as if the impugned order had not been made. It was averred that the order in substance amounted to dismissal of the petitioners and their reappoinntment afresh and reduction to a lower stage in the time scale of pay for specified period and the postponement of date of increment which in effect means nothing but imposition of the penalty of with holding of increment of pay for a specified period. With holding of privilege of passes was also a penalty and as such the provisions of the Railway Servants (Disciplinary and Appeal) Rules, 1968, were attracted and the authorities concerned were to make enquiry before passing impugned order. The validity of the impugned order was also challenged on the ground that the impugned order having been based on an alleged alleged misconduct viz. going on strike, could not be passed without first holding inquiry according to the principle of natural justice. The validity of the impugned orders was further challenged on the ground that is was passed in violation of the provisions of Article 14 and 16 of Constitution of India is as much as it amounted to arbitrarily discrimination between the persons similarly situate in as much as those persons who reported on duty upto 16.00 Hrs of February 2 1981, had been taken back without being deprived of any of the benefits, whereas the petitioners and others who joined after 16 0) Hrs on February 25 1981, have been rewarded the various penalties referre in me impugned order.
3. In the reply to the notice issue to the appellants (respondents in the writ petition) then contradicted the averments in the writ petitions and stated that he strike was illegal in as much as it was called by the All India Loco Running Staff Association, which is an un-recognised union and had been called without complying with the provisions of Sections 22 and 23 of the Industrial Disputes Act, 1947. That the respondents (petitioners in the writ petitions) deliberately and wilfully remained absent from duty during the the period February 2, 1981 to February 25, 1981 and participated in illegal strike. That, despite the request to resume their duties on or before 16,00 Hrs on February 25, 1981, they did not report on duty and therefore the break in service was an automatic consequence. The appellants based their case on the provisions of Chatter XIII of the Indian Railway Establishment Manual (here in after referred to as 'the Manual') & submitted that the disadvantages with the respondents (petitioners in the writ petitions) were the automatic consequence of break in service envisaged by Para 130 of the Manual. The contention about the violation of Articles 14 and 16 of the Constitution was met by the submission that by giving the call the Railway Administration had informed that those employees who had participated in illegal strike and would join their respective duties in their sheds after February 25, 1981, would face the consequence of break in service. That, the respondents (petitioners) not reporting on duty in response to the aforesaid call up to 16.00 Hrs on February 26, 1981 had to face the consequence of break in service. During the course of arguments as the impugned order of learned single Judge shows only two contentions. One regarding the principle of natural justice and the other regarding violation of the provisions of the Article 14 and 16 of the Constitution were raised. The learned Single Judge in view of the principle enunciated in the various authorities discussed in the order held that it was necessary for the authorities to have afforded an opportunity of hearing to the respondents (petitioners there) before passing the impugned order with regard to the break in service and since such an opportunity was not afforded to them, the impugned order cannot be upheld. As the writ petitions were allowed on this ground, the learned Judge did not consider it necessary to deal with the second submission regarding the order being violative of the provision of Articles 14 and 16 of the Constitution.
4. Mr. Mridul entered caveat on behalf of the respondents in all the three Special Appeals. We beared at length Mr. A. K. Mathur, learned Additional Advocate General and Mr. M. Mridul learned counsel for the Caveator respondents.
5. As the three appeals arise out of the common order of the learned single Judge and involve a common question, we also propose to dispose them of by one common judgment.
6. The learned Additional Advocate General has assailed the findings of the learned Single Judge on the ground that the principles of Natural Justice were not attracted in the circumstances of the case because of Para 1303 of the Manual which clearly contemplates automatic break in service of the employees going on illegal strike. As such, according to the learned Addl. Advocate General, there was no question of giving an opportunity to the respondents for being heard & no question of violation of principles of natural justice did arise.
7. Mr. Mathur, learned Additional Advocate General emphatically argued that principles of natural justice has no applicability where the statutory provision does not contemplate any show cause notice. That, para 1303 a statutory provisioa clearly speaks about automatic break in service on the ground of illegal strike and therefore, the principles of natural justice were not attracted and the respondents could not be given any relief.
8. Mr. Mridul, learned counsel for the respondents placed reliance on the various pronouncements, which we would discuss at appropriate stage, and submitted that the authorities concerned would not have taken for granted that the respondents had failed to report on duty on account of their participation in the illegal strike. That, the plea of a call by the authorities and informing the employees about the consequences of not reporting on duty having not been substantiated it is not open to the other side to contend that the persons who reported on duty after the 16.00 Hrs of February 23, 1981 had been rightly penalised.
9. Certain facts of the case are not in dispute. There was a strike in the last week of January & first week of February 1981. The strike was called off on 25-2-1981 and most of the employees reported on duty on that date wes not in dispute that the respondents in the three appeals and a few others could not report on duty on 25-2-1981. Rather they had joined duty on 26th February, 1981 at 9.00 Hrs. The pertinent question is whether because of the respondents reporting on duty a few hours after most of the employees had done so on 25th February, 1981 they could be penalised to such an extent as to lose the benefits of their long service. It is important to note that at the relevant time Karansingh, Driver Grade 'C' had put in 26 years of service. Lekh Raj and Dewaram employed as shunters had put in 23 and 26 years service respectively. In order to appreciate the arguments advanced by both the sides regarding the provisions of Para 1303 of the Manual and in order to find out whether the principles of natural justice are to be observed in such cases it would be profitable to recite para 1303 of the Manual.
10. It reads as under:
1303 BREAK IN SERVICE DUE TO AN ILLEGAL STRIKE' strikes may be divided into two categories, viz. Legal and illegal.
(a) Legal stikes are those which comply with the provisions of the Industrial Disputes Act, 194/; and
(b) Illegal strikes are those other than in (a) above and include demonstrations, involving question of work even of short duration.
Strikes falling under (a) above do not constitute a break in service and it would be appropriate to treat the period of absence as leave with or without allowances, as the case may be, without reference to the Railway Board.
11. In the case of illegal strikes referred to in (b) above the absence of the railway servant concerned is tantamount to a break in service and cannot be condoned without the sanction of the President. When such a break in service due to participation in an illegal strike is condoned by the President as dies non i.e. neither constituting a break in service nor counting as service, such period is treated as being non-existent in so far as the particular railway servant (s) is/are concerned, and, therefore, the status quo ante the inter-regnum to restored in all respects from the date following the last day of the period treated as dies non. In other words, service prior to the break so condoned will be treated as continuous with the service after the break itself will not be for all purposes but the period of the break taken into account for any purpose.
12. Mr. Mathur argued that when there is a break in service, the competent authority alone can condone it. He referred to the provisions of para 1301 which reads as under:
1301-'A break in service caused by participation in an illegal strike or by re-engagement after retirement, discharge, resignation etc. entails forfeiture of the service of a railway servant before the break unless condoned by the competent authority.
13. It has been stressed by Mr. Mathur that by virtue of para 1303 there was automatic break in the service of the respondents because of their participation in the illegal strike and not reporting on duty at the notified time despite the authorities concerned having issued call informing the employees to join duty on particular date by particular time and of all the consequences that were to follow in case of (heir not responding to the call. It was further contended that in view of this clear provision there was no necessity for giving any hearing to the respondents before passing the impugned order and that the respondents could have sought relief by approaching the competent authority for condonation of the break in service in consonance with the provisions of the para 1304 of the Manual.
14 The question calling for determination is whether there was automatic break in service because of the respondents not being on duty in the strike period. Applicability of para 1303pre-suposes participation in an illegal strike. To put it in other words, it is to be established that the employees concerned participated in an illegal strike. Absence from duty of an employee during the period of any agitation or strike would not in itself be sufficient to hold that he was a participant in the illegal strike. The employees against whom action is taken should have an opportunity to explain whether the strike was illegal and even if so whether they were participating in the same.
15. In the case of Gujarat steel Tubes Ltd. etc. v. Gujarat Steel Tubes & Mozdoor Sabha and Ors. AIR 1980 SC 1895 their lordships were of the opinion that the facts revealed that the strike was illegal. The management was hurt because production was paralysed. The strikers allegaly indulged in objectionable activities. The exasperated Management hit back by ordering their discharge for reasons set out in several pages in the appropriate contemporaneous proceedings. The misconduct after misconduct was flung on the workers to justify the drastic action. The discharge was considered to be punishment for the misconduct. Their Lordships were pleased to make following observations:
We cannot agree that mere failure to report for duty, when a strike is on, necessarily means misconduct. Many a workmen, as a matter of prudence, may not take the risk of facing the militant workmen or the Management's hirelings for fear, especially when there is evidence in the case from the Sobha that the Management had hired goondas & from the Management that the striking vangaurd was violent. It is also possible, in the absence of evidence to the contrary, that several workmen might not be posted with the Management's notice of recall or the terms on which they were being recalled.
16. Mr. Mathur argued that principles enunciated in the aforesaid case cannot be applied in all cases of strike because there management had acted with high handedness.
17. What ever be the situation, when the employee is discharged from employment or there is order for break in service, it is punishment and the principle of natural justice would be attracted & proper opportunity should be afforded to the concerned employee to put before the authorities concerned, the reasons for his being off from duty at the relevant period.
18. In the case of Mafat Lal Naran Das Barot v. J.O. Rathod, Divisional Controller : (1966)ILLJ437SC the permanent employee of the Road Transport Corporation remained absent without leave and without reasonable cause and therefore his services were terminated. The opportunity was not given to him to show cause prior to the order of termination of service. Their lordships were pleased to hold that principles of natural justice were contravened.
19. The case of Deokinandan Prasad v. The State of Bihar and Ors. A.I.R. SC 1971 1409 also throws light on the point. Rule 76 of the Bihar Service Code (1952) prescribes automatic termination of service for continuous absence for 5 years. However, it was held by their Lordships that an order passed to that effect without giving opportunity to the Government servant offends Article 311 of Constitution,
20. The question about the applicability of principle of natural justice in as much as giving the opportunity to the employee against whom the order for forfeiture of past service was the case for consideration before their lordships of the Supreme Court in the case of Dayal Saran Sanna v. Union of India and Ors. A.I.R. 1980 SC 454. In that case the officer concerned did not comply with the order of transfer and remained absent from duty. Regarding the order of forfeiture of past service under Article 42B of the Civil Service Regulations, their lordships were pleased to opine that the error of forfeiture of past service cannot be made without observing the principles of natural justice.
21. The forfeiture of earned leave, postponement of increment and deprivation of the benefit of the earlier services for the purpose of pensionary benefits amounts to penalty and punishment for the alleged misconduct of the respondents on the ground of their participation in the strike. As observed above mere remaining absent from duty in the strike period could not be considered to be participation in illegal strike and the right of 'audi alteram partem' cannot be denied to the persons affected. We find ourselves unable to agree with the proposition of Mr. Mathur that as the employees in question did not respond to the call given by the Railway Administration and did not report on duty up to 16.00 Hrs. on 25-2-81 the impugned order was bound to follow. The fact of any call being given has also been disputed by the aggrieved employees. Mr. Mridul, learned Counsel for the respondents submitted that no proof was brought on record to show that any such call was given. Mr. Mathur could not controvert that contention. Be as it may, we are not entering into any discussion regarding this fact of call having been given, & if so, in what terms and as to whether all the employees had an occasion to have the knowledge of the call being given. The position in the present matter is that the respondents and a few others could not join duty along with majority up to 16.00 Hrs on 25-2-81 rather had reported on duty on 26-2-81 at 9.00 Hrs were taken on duty. In view of the principles enunciated in the various authorities a few of which we had referred to above, we are inclined to to hold that the learned single Judge was correct in holding that principle of natural justice was violated in as much no opportunity was given to the respondents to be heard before the Railway Administration took such drastic step against them. The order passed by the learned Single Judge, therefore, calls for no interference.
22. Consequently, the appeals are dismissed summarily.