S.R Sagar, J.M:— On 20.5.1983 at about 13.20 hours, there was a heavy fire at Keshavrai Patan Railway Goods Shed, in which 43 Cable Drums belonging to the Signal and Telecommunication Department of Railway Electrification, Kota were gutted. At that time, the plaintiff/applicant Shri Ram Ratan was casual Chowkidar, Signal and Telecommunication Deptt. Railway Electrification, Kota. He was on duty Chowkidar in-charge of the CSO's stores, depot at Keshavrai Patan Goods Shed premises in 06.00 hours to 14.00 hours shift duty. A major joint enquiry was conducted under the orders of D.R.M, Kota into the cause of fire, which resulted in ultimate removal of the plaintiff/applicant from the service.

2. It appears that while the said enquiry was still pending, the applicant apprehended action against him and filed the Civil Suit No. 35 of 1984 on 12.1.1984 against the defendants/respondents in the court of learned Munsif (North), Kota for declaration that entire enquiry proceedings against the plaintiff/applicant for removing him from service were illegal. He also prayed for a permanent prohibitory injunction restraining the defendants/respondents from removing the applicant/plaintiff from the service. Pending disposal of the said suit, the plaintiff/applicant moved an application on the same date viz. 12.1.1984 in the court of learned Munsif (North), Kota for issue of a temporary prohibitory injunction restraining the defendants/respondents from removing him from service on the basis of report of the Enquiry Committee and allow him to continue him in the service and paying him his wages etc. accordingly. The above suit and the application for issue of ad-interim injunction were still pending; that the plaintiff/applicant was removed from his service with effect from 19.1.1984 vide office order No. GR/RE/S & T/2/1 dated 18.1.1984 of Chief Project Manager, Kota.

3. The plaintiff/applicant, then got the plaint of his said suit amended. By way of amendment, the plaintiff/applicant repeated almost the same facts; prayed for declaration that the order dated 14.11.1983, report of the Enquiry Committee and the order dated 18.1.1984, removing him from service, were illegal and that the plaintiff/applicant was still continuing in service of the respondents.

4. The plaintiffs suit was contested by the defendants/respondents, by filing written statements against the Original plaint as well as against the amended plaint. They also filed objections against the application of issue of temporary injunction. The plaintiff/applicant filedhis rejoinder.

5. After hearing both the parties on the application for issue of temporary injunction, the application was dismissed by the learned Munsif (North), Kota on 6.2.1984

6. Being aggrieved of the said order dated 6.2.1984, of the learned Munsif (North), Kota the palintiff/applicant preferred an appeal in the court of District Judge, Kota. This appeal was registered as C.M.A 28/1984. During the pendency of this appeal, the plaintiff/appellant moved an application in the appellate court for issue of a temporary injunction against the defendants/respondents. The civil suit, the appeal and the application for issue of temporary injunction aforesaid were still pending when the Bench of the Central Administrative Tribunal at Jodhpur came into being. Consequently, all these said cases were transferred to this Bench under section 29(1) of the Administrative Tribunals Act, 1985. The Civil suit received here by transfer was registered as T.A 2369/86, the Civil Miscellaneous Appeal was registered as T.A No. 2093/86 and the Miscellaneous case for issue of temporary injuction was registered as T.A No. 2094/86.

7. The facts, as have been placed before the court, now this Tribunal, through the plaint, have been made confusing and complicated by incorporating irrelevant matter and omitting the relevant and crucial facts, which are necessary for disposal of the case. However, the facts of the case, as emerged from the pleadings of the parties are briefly stated hereafter.

8. It appears that the plaintiff/appellant was a casual labourer (Khalasi) and was working as Casual Chowkidar, Signal and Telecommunication Department, Railway Electrification Project, Kota; that on 20.5.1983, at about 13.20 hours, there was a heavy fire at Keshavrai Patan Railway Goods Shed, in which 43 cable drums belonging to the Signal and Telecommunications Department of Rly. Electrification Project, Kota were gutted. At that time, the plaintiff/applicant was on duty Chowkidar in-charge of the CSI's stores depot at Keshavrai Patan Goods Shed premises. A major joint enquiry was conducted against him. As aresult of the enquiry, the plaintiff/applicant was found guilty and show-cause notice dated 14.11.1983 was issued to him to submit his reply within 15 days as to why he should not be removed from service. The plaintiff/applicant submitted applications dated 26.11.1983 and 26.12.1983 demanding the copies of the statement of the witnesses and also explaining reasons for his innocence regarding the said fire. With reference to the applications dated 26.11.1983 and 26.12.1983 the Senior Signal Telecommunication Engineer, Railway Electrification, Kota, vide its letter No. GR/RE/S & T/2/1 dated 15.12.83 and 7.1.1984 addressed to the plaintiff/applicant, supplied the copies of findings and Enq. Comm. and the statements of witnesses asking the plaintiff/applicant to furnish his explanation, if any, within 7 days from the receipt of these letters and in the absence, unilateral action would be taken against him. This letter and copies of statements of witnesses were received by the plaintiff/applicant on 10.1.1984 He did not file any reply or explanation thereafter before the respondents or the competent railway authorities. Instead of it, he filed the civil suit in the court of learned Munsif (North) Kota with an application for issue of a temporary injunction.

9. The respondents have contested the plaintiff/applicant's case. They have contended that prior to 19.1.1984 viz. date of removal of the plaintiff/applicant from service, the palintiff/applicant was only a casual Khalasi in Railway Electrification project; that he being on duty as Chowkidar at the said Railway Goods Shed at the relevant time when fire took place, he was responsible and therefore his services were terminated after holding enquiry according to law. The plaintiff/applicant did not even submit any explanation in response to the notice dated 7.1.1984 which was received by him on 10.1.1984 and therefore, on expiry of the period of show-cause notice of order for termination of plaintiffs service was passed on 18.1.1984 by competent authority. Besides, the respondents contended that the suit was bad for want of notice under section 80 C.P.C; that the court had no jurisdiction to try the suit; that the suit was not maintainable in view of section 79 CPC and Article 300 of the Constitution and that the order (removal of the plaintiff from service) had become complete and therefore, the suit had become infructuous.

10. We have heard arguments of the learned counsel for the parties at length and have gone through the record.

11. Admittedly, the plaintiff/applicant was a casual labourer. In his rejoinder, however, the plaintiff has alleged that the applicant, although appointed as a casual labourer (Khalasi) but had since acquired temporary status. Here, it may be noted that the most important factor, which was required to be pleaded or to be proved for showing that the applicant had since acquired the temporary status, has not been pleaded. It is not known as to on what date the plaintiff/applicant was employed as a casual labourer and whether he continuously worked as a causal labourer or for a period of 180 days, as project labour. In the absence of such pleadings, we have to deduce it from the facts available from record.

12. The respondents have contended in para 1 of their written statement that the plaintiff was only a casual Khalasi prior to 19.1.1984 Admittedly, the fire took place on 20.5.1983 at Keshavrai Patan Railway Goods Shed. On that date the plaintiff/applicant was on duty Chowkidar in-charge. These two facts amply make it clear that the plaintiff was in employment as casual labourer from before 20.5.1983 According to the respondents, the services of the plaintiff were terminated with effect from 19.1.1984 This shows that the plaintiff continued in service of respondents as casual labourer till 18.1.1984 Even if we take the date of employment of the plaintiff as casual labourer as 20.5.1983, he had continued in employment for morethan 180 days till the date of termination of his services. In any case, the plaintiff shall be deemed to have continuously worked as casual labourer for more than 180 days.

13. Now, the question arises as to what is the definition of casual labourer in accordance with the provisions of the Indian Railway Establishment Manual (for short ‘the Manual’). In this connection, rule 2501 in chapter XXV of the Manual may be referred. It reads as under:

“2501. Definitioa—

(a) Casual Labour refers to labour whose employment is seasonal, intermittent, sporadic or extends over short periods. Labour of the kind is normally recruited from the nearest available source. It is not liable to transfer, and the conditions applicable to permanent and temporary staff do not apply to such labour.

(b) The casual labour on railways should be employed only in the following types of cases, namely:—

(i) Staff paid from contingencies except those retained for more than six months continuously. Such of those persons 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.

(ii) Labour on projects, irrespective of duration, except those transferred from other temporary or permanent employment.

(iii) Seasonal labour who are sanctioned for specific work of less than six months duration. If such labour is shifted from one work to another of the same type, e.g, relaying and the total continuous period of such work at any one time is more than six months' duration, they should be treated as temporary after the expiry of six months of continuous employment. For the purpose of determining the eligibility of 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 particular gang or group of labourers.”

14. In this connection sub-rule 2, which reads as follows, is very much relevant:

(2) Once any individual acquires temporary status, after fulfilling the conditions indicated in (i) or (iii) above, he retains that status so long as he is in continuous employment on the railways. In other words, even if he is transferred by the administration to work of a different nature he does not lose the temporary status.”

15. With respect to the termination of services of casual labour, rule 2505 is significant, which reads as follows:

“2505. Notice of termination of service-Except where notice is necessary under any statutory obligation, no notice is required for termination of service of the casual labour. There services will be deemed to have terminated when they absent themselves or on the close of the day.

Note:—In the case of a casual labourer who is to be treated as temporary after completion of six months' continuous service, the period of notice will be determined by the rules applicable to temporary Railway servants.”

16. Above will show that after acquiring temporary status the services of a casual labourer can be terminated by adopting procedure laid down for temporary railway servants. The position has been made clear in paragraph 2511 of the Manual, which provides:

“(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 Railway 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 hew post on absorptionin regular service.

(b) Such casual labour who acquire temporary status, will not, however, be brought on the permanent establishment unless they are selected through regular Selection Boards for Class IV Staff.”

17. According to the respondents, a major joint enquiry was conducted into the cause of fire at Keshavrai Patan Railway Goods Shed aforesaid and according to findings of the Enquiry Committee, the plaintiff/applicant was found responsible for the fire accident. There is, however, nothing on the record to show that the plaintiff/applicant also participated in the said enquiry and that he was supplied copy of the report of the enquiry committee.

18. Only a 15 days' notice dated 14.11.1983 to show cause why the applicant should not be removed from service, was issued. On demand the plaintiff/applicant was supplied the copies of findings of major joint enquiry committee alongwith remarks and reasons for findings vide letter dated 15.12.1983 (Annexure A/1). The applicant was called upon to submit his reply within 7 days of the receipt of this letter dated 15.12.1983 Subsequently, the office of the Chief Project Manager furnished the copies of the statements of witnesses given before the major joint committee vide letter dated 7.1.1984 (Annexure A/6A). As no explanation was furnished within 7 days of the receipt of the letter dated 7.1.1984 (Annexure A/6A), the removal order dated 18.1.1984 was passed whereby the plaintiff/applicant was removed from railwayservice with effect from 19.1.1984

19. The above will show that no reasonable opportunity was afforded to the plaintiff/applicant for defending himself and also that no opportunity for personal hearing was given to him. It also appears from the copy of the findings (Annexure A/2) that besides the plaintiff/applicant other two persons were also found respon sible by the committee. The findings of the committee are reproduced below:

“We, the undersigned have carefully considered all the evidence, do find: After having the observation at site of fire accident and the examination of the witnesses the Committee concludes that the fire is caused due to the careless smoking by the Chowkidars. Therefore, we hold the following staff responsible for this fire accident:—

1) Shri Ram Ratan, Chowkidar

2) Shri Ram Prakash Chowkidar

3) Shri Prahlad Sharma, Chowkidar.

20. It is not understood as to on what basis only the plaintiff/applicant was chosen for punishment of removal from service. The learned counsel for the respondents tried to explain that only the applicant was on shift duty and not the other persons mentioned in the report and therefore, action was proposed to be taken against the applicant alone. If that were so, there was no justification for the inclusion of the names of two other Chowkidars as being responsible for the fire accident. The impugned or removal of the plaintiff/applicant from service is therefore, unconstitutional.

21. It will not be out of point to mention here that the copy of the statements of the witnesses (Annexures A/6 to A/8) and the affidavit of Shri Ajaib Singh (Ann. A-11) do not indicate towards the guilt of the plaintiff/applicant. There is no other cogent evidence on the record to prove that the plaintiff/applicant alone was responsible for the cause of the fire. The impugned order dated 18.1.1984 terminating the services of the plaintiff/applicant is not based on sufficient evidence.

22. As the plaintiff/applicant acquired temporary status, he is entitled to the benefits of Railway Servants (Discipline & Appeal) Rules, 1968 (for short ‘the rules’) also. It is clear from the above that enquiry for imposing penalty as contemplated by the provisions of ‘the Rules’ was not conducted in as much as article of charge with definite imputation of negligence and copies of enquiry report of such charges were not supplied to the plaintiff/applicant as required by rule 9 of the Rules. The impugned order dated 18.1.1984 removing the plaintiff/applicant from service with effectfrom 19.1.1984 is therefore, void ab-initio.

23. Consequently, the impugned order dated 18.1.1984 is hereby quashed and it is declared that plaintiff/applicant continues in service and he is entitled to reinstatement with full back wages and other allowances with all consequential benefits. The respondents are directed to implement this order within three months from the date of receipt of the copy of this order. T.A No. 2369/86 is disposed of accordingly.

24. T.A No. 2093/86 and T.A 2094/86 which arose from the Civil Suit which on transfer was registered as T.A No. 2369/86 and are taken up for disposal alongwith T.A No. 2369/86 have become infructuous and are hereby dismissed. In the facts and circumstances of the case the parties are left to bear their own costs.

25. Application allowed.