S.C.AGRAWAL, J. - (1.) THESE three writ petitions raise common questions for determination and, therefore, they are being disposed of by a common order. The petitioners in these writ petitions were employees of the Northern Railway at Jodhpur. Karan Singh (petitioner in S B, civil writ petition No. 1888/81) was employed as Driver Grade C and on February 2. 1981, he had put in 26 years of service. Lekh Raj and Dewa Ram (petitioners in writ petitions no. 1889/81 and 1890/81) were employed as shunters and on February 2, 1981, they had put in 23 and 26 years service respectively. All the three petitioners were posted at the Loco Running Shed, Jodhpur, With a view to press their demands with regard to the amentioneration of their conditions of service certain workmen employed at the Loco Running Sheds of the Indian Railways commenced an agitation in the last week of January and first week of February, 1981. During the course of the aforesaid agitation, about 305 out of 908 employees employed at the Loco Running Shed of Jodhpur Division of the Northern Railway did not report for duty on and from February 2, 1981. The said agitation was called off on February 25. 1981. The petitioners did not report for duty during the period from February 2, 1981 till February 25, 1981 and returned to their duty on February 26, 1981 at 9 a.m. Sometime in the month of March. 1981, the Divisional Personnel Officer, Northen Railway, Jodhpur (respondent No. 2 in these writ petitions) issued order (Ex. 1) whereby it was directed that the Drivers, Shunters and Firemen whose names were mentioned in the list appended to the said oder were unauthorisedly absent from duty during the period from February 2, 1981 to February 25, 1981 and for that reason, it was being ordered that their earned leave be forfeited, the date of increment be postponed and the benefit of their earlier se vice be denied to them for the purpose of leave, passes and qualifying services for the purpose of pensionary benefits. The names of the petitioners are included in the list appended to the said order. Being aggrieved by the aforesaid order, the petitioners have filed these writ petitions and the petitioners have prayed that an appropriate writ, order or direction be issued quashing the said order (Ex. 1) passed by respondent no 2 and restraining the respondents from giving effect to the said order.
(2.) IN the writ petti(sic)ions, the petitioners have submitted that the impugned order in substance amounts to dismissal of the petitioners from service and their reappointement afresh and that an order of dismissal could not be made except after holding an enquiry according to the procedure laid down for impo ing a major penalty as provided in Rules 9 to 13 of the Railway Servants' (Discipline and Appeal) Rules, 1968 hereinafter referred to as 'the Rules') and that such enquiry was not held before passing the impugned order. In the writ petitions, it has further been submitted that in any event, the impugned order amounts to reduction to a lower stage in the time scale of pay for a specified period falling within the scope of clause(v)of rule 6 of the Rules, and that such a penalty, being major in character, could be imposed only after holding an enquiry in accordance with the rules 9 to 13 of the Rules, but such an enquiry was not held In the writ petitions, it has further been submitted by the petitioners that the impugned order results in the postponment of the date of increment which in effect means nothing but imposition of the penalty of with holding of increments of pay for a specified period and that such a penalty could not be imposed except after holding an enquiry according to rule 11 of the Rules, which had not been done. The case of the petitioners is further that with holding of privilege of passes is also a penalty within the meaning of clause (iii -a) of rule 6 and such a penalty could be imposed only after holding an enquiry in accordance with rule 11 of the Rules, which had not been done. The petitioner have further submitted that even if it be assumed that the order does not fall within the scope of the Rules, aforesaid, then too, the order being penal in character and impugned been passed for an alleged misconduct, namely, going on strike, could not be pissed without first holing an enquiry according to the principles of natural justice. The petitioner have also submitted that the impugned order would result in denial of the post retirement benefits to the petitioners in as much as they have acquired a right of getting the service rendered by them counted as qualifying service and the said right is vested right and the said vested right has been denied to the petitioners by the impugned order and such an order could not been madeexcepi after holding an enquiry, which had not been done. In the writ petition, the petitioners have also challenged the validity of the impugned order on the ground that it was passed in violation of Articles 14 and 16 of the Constitution of India in as much as by the impugned order, the respondents have arbitrarily discriminated between persons similarly situate in as much as while persons who reported on duty upto 16 hours of February 25, 1981 have been taken back without being deprived of any of the benefits where as the petitioners and others who joined after 16 hours on February 25, 1981 have been awarded the various penalties referred to in the impugned order. According to the petitioners, reporting for duty upto 16 hours on February 25, 1981 could not constitute a valid ground for differential treatment between persons who had gone on strike.
(3.) IN the reply that has been filed on behalf of the respondents, it has been submitted that the strike that had been called with effect from February 2, 1981 was an illegal strike in as much as it was called by the All India Loco Running Staff Association, which is an un -recognised union and the said strike had been called without complying with the provisions of Sections 22 or 23 of the Industrial Dispates Act, 1947. In the reply, it has been further stated that the petitioners deliberately and wilfully did not report on duty during the period February 2, 1981 to February 25, 1981 and they remained absent from duty and participated in illegal strike during this period. In the said reply, it has further been stated that all possible efforts were made to persuade the petitioners to return on duty and that the petitioners and others who participated in the illegal strike, were requested to resume -their duties on or before 16 hours on February 25, 1981 or in the alternative, they would face the consequences of break in service and that said call had been given wide publicity and the same was placed on the notice boards at Jodhpur, Merta Road and Simdari but inspite of these calls and efforts, the petitioners did not report for duty on or before 16 hours on Februay 25, 1981. In the said reply, the respondents have also submitted that Chapter XIII of the Indian Railway Establishment Manual (hereinafter referred to as 'the Manual') clearly provides for the consequences of participating in an illegal strike and that the impugned order has been passed stricktly accordance with the provision contained in chapter XIII of the Manual. In the said rely, the respondents have submitted that forfeiture of earned leave, postponement of the date of increment, losing of benefit of their earlier service for the purpose of leave and passes and qualifying service for the purpose of pensionary benefit etc, are the consequences of break in service which follows partcipation in illegal strike. In the said reply, it has also ebeen stated that the impugned order, does not violate the provisions of Articles 14 and 16 of the Constitution in as much as by the call given the Railway Administration, all the employees were informed that those employees who had participated in the illegal strike and did not join their respective duties in their sheds up to 16 hours on February 25, 1981 would face the consequences of break in service and since the petitioners remained ap(sic)ent from duty wilfully and unauthorisedly inspite of the aforesaid call they had to face the consequences of break in service and those employees who responded to the said call and reported on duty upto 16 hours on February 25, 1981 did not have to face the consequences of break in service. Shri Mridul, the learned Counsel for the petitioners in all these writ petitions as well as Shri J.P. Joshi, the learned Counsel for the respondents, requested that the writ petitions may be finally disposed of at this stage of admission and arguments were heard on that basis.;