K. N.Singh, J. - (1.) ALL India Loco Running Staff Association, Izatnagar Bareilly has filed this petition under Article 226 of the Constitution of India for issue of a writ of mandamus directing Union of India, Divisional Railway Manager, North Eastern Railway, Izatnagar, Bareilly; Divisional Personnel Officer, North Eastern Railway, Izatnagar, Bareilly and Senior Divisional Mechanical Engineer, North Eastern Railway, Izatnagar, Bareilly not to give effect to the order dated 13-2-1981 declaring break in service of 376 employees.
(2.) THE petitioner is an Association of Railway Employees working in categories of drivers, fireman, shunters and other running staff of Locomotive in the division of Izatnagar of North Eastern Railway, liareilly. It appears that employees of the Locomotive of Izatnagar raised certain demands before the Railway Authorities. Conciliation proceedings went on and ultimately some compromise was arrived at between the Railway authorities and the workmen. It is alleged that later on the terms and conditions of the compromise were not implemented, as a result of which there was agitation amongst the members of petitioner Union. It further appears that in the month of January and February, 1981, some of the members of the petitioner's Union went on strike for a day or two only. According to the petitioner the members of the Association had submitted applications for leave and they had not gone on strike. On behalf of respondents it is asserted that the members of the petitioner Association had gone on strike which was declared illegal. Since they abstained from duty in illegal and unauthorised manner without obtaining leave, a break had occurred in their service. No enquiry was held to decide the question as to which member of the petitioner's Union had participated in the strike and which of the members had proceeded on leave, if any. It appears the respondents, treated all the 376 members as mentioned in Annexure-1 to the writ petition, to have gone on strike In an illegal manner and for that reason the impugned order was issued directing break in service of 376 persons employed in the Izatnagar Division of North Eastern Railway. THE petitioner has challeged that order by means of this writ petition. We have heard learned counsel for the parties. We find that there is no dispute regarding one fact that no enquiry was at all held by the authorities and no opportunity was given to the persons mentioned in Annexure-1 to the writ petition before the issue of the impugned order. It was notified by the impugned order dated 13-2-1981 that there would be break in service in respect of 376 employees on the ground of their being on illegal strike. The petitioner has asserted that the persons mentioned in Annexure-1 had gone on leave and some of them had submitted medical certificate, but that was not considered before passing the impugned order. In the counter-affidavit filed on behalf of respondent railway it is asserted that these employees had participated in an illegal strike and they had abstained from duty in an unauthorised manner, there was break in their service in accordance with the Fundamental Rules 65. There is no assertion in the counter-affidavit that any enquiry was ever held in the matter or that the persons mentioned in Annexure-1 were given any opportunity to place their version before the authorities. Break in service entails forfeiture of various benefits of past service. On the basis of length of service a Government servant earns his increment, promotion, pension, gratuity and other like benefits. Whenever there is break in service of a Government servant the right which he may have earned on the basis of length of service is affected adversely which entails serious civil consequences to him. A Government servant may have a reasonable ground for his absence from duty without leave, he can give explanation only if an opportunity is afforded to him. Resorting to strike means absence from duty without leave. In such a situation if break in the service is contemplated, the bare minimum requirement of natural justice by affording opportunity to the employees concerned must be followed. In the instant case, admittedly no opportunity was afforded to the railway employees although break in their service had been directed by the impugned order. In Dayal Saran v. Union of India, AIR 1980 SC 554, the Supreme Court while dealing with an order of forfeiture of service of a Government servant observed as under : "We do not also think that an order of forfeiture of past service can be made without observing the principles of natural justice. Admittedly, disciplinary action was not taken against the appellant in connection with his absence from duty without leave. Nor was any notice given to the appellant that his past service was proposed to be forfeited."
(3.) IN view of the laws so declared by the Supreme Court, it is not open to the authorities to entail break in service of Railway Employees without holding enquiry into the matter and without giving opportunity to the affected employees. The minimum requirement to the principles of natural justice is to afford opportunity or explanation to the employee concerned before the order of forfeiture of service is issued. Since the impugned order has been passed in violation of principles of natural justice, the order falls as liable to be quashed. The view that we are taking, is supported by the decision of Rajasthan and Patna High Courts in Karan Singh v. Union of India decided on November 8, 1982 by Rajasthan High Court and S. N. Agnikotri v. Union of India decided by a Division Bench of Patna High Court.;