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. 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') and 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.
(3.) 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.;