# Radhey Shyam Mishra Plaintiff v. Union of India through G.M., Northern Railway

- **Citation:** (2006) 1 ILRA 309
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-30
- **Case number:** Section Appeal No. 894 of 1985
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-mishra-plaintiff-v-union-of-india-through-g-m-northern-railway-40846
- **Pages:** 5

## Headnote

Sri Govind Saran
Sri K.C. Sinha

Indian Railway Establishment ManualRule-Whether
the
Provision
of
Establishment Rules are the compilation
of Rules held -yes:

Held: Para 8

I find that Appellate Court grossly erred
in law in holding that the Indian Railway
Establishment Manual, Part II is non
statutory compilation of rules. In L.
Robert D'Souza Vs. The Ex. Engineer
Southern Railway AIR 1982 SC 854 it
was
held
that
Indian
Railway
Establishment
Manual
Vol.
Ii
is
a
compilation of Rules and is applicable as
conditions of service to the Railway
servants. The plaintiff having worked for
more than six months continuously had
attained the temporary status under
para 2511 (1) and could only be
terminated from service after following
the procedure under para 2302 which
conforms to para 2505 for termination of
service and the provisions of Article 311
(2) of Constitution of India. There was
no evidence o record and that the
documents filed by the parties do not
justify the findings of the lower appellate
court that the plaintiff quit his job on his
own accord. This was not even the case
set up in the written statement. The
letter dated 2.12.1997 in reply did not
even suggest that plaintiff had quit the
job.
Case law discussed:
AIR 1982 SC 854

(B) Indian Railway Establishment RulesPara-2511
(c)-Termination
OrderAppellant worked as skilled, Mechanic-
on the basis of competitive examination
worked about 6 month-acquired the
statues of temporary employee can not
310 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
be terminated without following the
procedure provided in para 2302-absent
from duty without information amountsmisconduct before termination enquiry
held must .

Held: Para 10 and 12

The plaintiff had attained the temporary
status of employment. His services could
not be terminated without following the
procedure provided in para 2302 of the
Indian Railway Establishment Manual.

I find that the pleadings and the
documentary evidence led by parties,
clearly raised the question of the status
of employment and its consequences on
termination of service. It is a substantial
question
of
law
which
was
not
appreciated by the Lower Appellate
Court and was wrongly decided against
the plaintiff, who had not quit the job
and
was
entitled
to
notice
of
termination. It was a case of misconduct
and called for an enquiry before the
notice of termination could be given.
Case law discussed:
AIR 1974 SC-1758
2005 (2) SCC-500

## Text

1 All] Radhey Shyam Mishra V. Union of India
309
provides that on the determination of the
period limited for instituting a suit for
possession the right to such property shall
be extinguished. The rule is an exception
to the general rule that limitation bars the
remedy but does not extinguish the right.
If however a person is in possession his
right can not be extinguished unless the
case is covered by Clauses (a) (aa) and (b)
of Section 189. He can therefore seek a
declaration of his right at any point of
time. If a person has been dispossessed he
would have to institute a suit under
Section 209 U.P.Z.A. & L.R. Act.
Appendix III provides the period for
limitation for filing a suit under Section
209. It would follow therefore that a suit
under Section 299-B would be barred by
limitation
the
bhumidar
is
out
of
possession and his right to file a suit
under Section 209 is barred by limitation.
The finding of fact recorded on the
question of possession is that the plaintiffs
have
established
their
continuous
possession over the disputed land. The
finding is not shown to be vitiated by any
error. As the rights of the plaintiff were
never
extinguished
no
question
of
limitation arises. For the reasons given
above the writ petition lacks merit and is
dismissed.

 Petition dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Section Appeal No. 894 of 1985

Radhey Shyam Mishra
...Plaintiff
Versus
Union of India through G.M., Northern
Railway

 ...Defendant

Counsel for the Appellant:
Sri V.K. Pandey
Sri R.P. Mishra

Counsel for the Respondent:
Sri Govind Saran
Sri K.C. Sinha

Indian Railway Establishment ManualRule-Whether
the
Provision
of
Establishment Rules are the compilation
of Rules held -yes:

Held: Para 8

I find that Appellate Court grossly erred
in law in holding that the Indian Railway
Establishment Manual, Part II is non
statutory compilation of rules. In L.
Robert D'Souza Vs. The Ex. Engineer
Southern Railway AIR 1982 SC 854 it
was
held
that
Indian
Railway
Establishment
Manual
Vol.
Ii
is
a
compilation of Rules and is applicable as
conditions of service to the Railway
servants. The plaintiff having worked for
more than six months continuously had
attained the temporary status under
para 2511 (1) and could only be
terminated from service after following
the procedure under para 2302 which
conforms to para 2505 for termination of
service and the provisions of Article 311
(2) of Constitution of India. There was
no evidence o record and that the
documents filed by the parties do not
justify the findings of the lower appellate
court that the plaintiff quit his job on his
own accord. This was not even the case
set up in the written statement. The
letter dated 2.12.1997 in reply did not
even suggest that plaintiff had quit the
job.
Case law discussed:
AIR 1982 SC 854

(B) Indian Railway Establishment RulesPara-2511
(c)-Termination
OrderAppellant worked as skilled, Mechanic-
on the basis of competitive examination
worked about 6 month-acquired the
statues of temporary employee can not
310 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
be terminated without following the
procedure provided in para 2302-absent
from duty without information amountsmisconduct before termination enquiry
held must .

Held: Para 10 and 12

The plaintiff had attained the temporary
status of employment. His services could
not be terminated without following the
procedure provided in para 2302 of the
Indian Railway Establishment Manual.

I find that the pleadings and the
documentary evidence led by parties,
clearly raised the question of the status
of employment and its consequences on
termination of service. It is a substantial
question
of
law
which
was
not
appreciated by the Lower Appellate
Court and was wrongly decided against
the plaintiff, who had not quit the job
and
was
entitled
to
notice
of
termination. It was a case of misconduct
and called for an enquiry before the
notice of termination could be given.
Case law discussed:
AIR 1974 SC-1758
2005 (2) SCC-500

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard learned counsel for the
appellant and learned counsel for the
respondent.

2. The substantial question of law
that arises for consideration in Second
Appeal and framed at the time of
admission is whether a casual labourer
who had acquired temporary status under
Rule 2501 (b) of the Indian Railway
Establishment Manual is debarred from
the rights and privileges admissible to a
temporary employee.

The facts giving rise to this second
appeal are, that the plaintiff after having
pased the written test for appointment as a
'Skilled Mechanic' was appointed, on
15.10.1975, on daily rated wages at Rs.8/-
and was posted at Bindki Railway Station
Fatehpur under the Telecommunication
Inspector, Northern Railway, Kanpur. It
was alleged in the plaint that he worked
upto 27.4.1976 for 188 days and was
thereafter reappointed on the same post
w.e.f. 4.5.1976 of daily rated wages. On
completing six months service, he was
paid Rs. 13.30 per day w.e.f. 4.11.1976.
He was not provided with any railway
quarters. He was trade tested in May 1978
for
the
post
of
WM/TCM/Skilled
Mechanic by oral, written and practical
examinations
on
27.8.1977.
While
performing the duties at Bindki Railway
Station,
he
fell
ill
suffering
from
diarrhoea
and
became
physically
incapable of performance of duties. He
had to leave at about 04.00 P.M. for
easing
himself
and
requested
his
colleagues Shri Maharaj Singh to perform
his duties. He left at 08.00 PM after
handing over the charge to Shri Maharaj
Singh.

3. On the next day, he was ready to
take charge of his duties. He met Sri B.
Ram, Telecommunication Inspector, who
refused to allow him to resume duties on
31.8.1977. He received a letter from
Telecommunication
Inspector,
Microwave, Kanpur Centre alleging that
he had absconded from duties and was
found absent at 07.05 hours on 27.8.1977.
On 2.9.1976 plaintiff submitted his
explanation.
Thereafter
he
was
not
allowed to join duties giving him cause of
action to file the suit.

4. Both the parties filed documents in
evidence. Plaintiff did not examine
himself and did not produce any witness.
1 All] Radhey Shyam Mishra V. Union of India
311
Both the parties dispensed with formal
proof of documentary evidence and did
not choose to examine any witnesses. The
trial court found that the plaintiff had
acquired temporary status in employment
and that his services could not be
terminated
without
following
the
procedure of giving 14 days notice as
provided in para 2302 of the Indian
Railway Establishment manual Vol. 2.
The suit was consequently decreed with
the declaration that the plaintiff is entitled
to work as skilled mechanic. The
statement of the defendant that his
services came to an end on 27.8.1974 was
declared to be void. The First Appeal No.
482 of 1983 against judgement and decree
dated 19.4.1983 was, however, allowed
by the XII Additional District Judge,
Kanpur by the judgement and order dated
28.1.1985 on the ground that the plaintiff
was not absorbed in service and did not
attain temporary status. The Railway
Establishment Manual does not have
statutory force and that the plaintiff had
abandoned his employment which was
proved by the fact that he had pleaded
guilty and had prayed for pardon.

5. Learned counsel for the appellant
submits that having worked for more than
six months as a skilled Mechanic, the
plaintiff had attained temporary status. It
was not necessary for the railways to
issue a specific order of absorption. Para
2511 of Indian Railways Establishment
Manual gives the employee the benefit of
temporary employment. It is a protection
given to the casual laboures against
exploitation and the services of such an
employee can be terminated only after
following the procedure of giving notice
under
para
2302
of the
Railways
Establishment Manual Vol. II. The
termination in such case can only be
made, if it is on account of the expiry of
the officiating vacancy, or removal and
dismissal from service as a disciplinary
measure
after
following
with
the
provisions of Article 311 (2) of the
Constitution of India, or when he is
deemed to have resigned from his
appointment. It gives a right to the
employee to a notice and pay for the
period of notice provided a notice of
termination is given by the authority
which is not lower than the appointing
authority and where he is an apprentice,
after
following
the
provisions
of
Industrial Disputes Act 19473.

6. In the present case, it is denied in
the written statement that the plaintiff had
completed more than six months of daily
rated service. In para 1 and 2 it is
admitted that the petitioner was appointed
as skilled Mechanic w.e.f. 4.5.1976. He
took leave for attending the selections
conducted
by
the
headquarters
for
recruitment of mechanics from open
marked. In para 15 it is stated that there
was no question of removing the plaintiff
from retrospective effect from 27.8.1976
as he was not at all in service at that time.
In para 23 it is stated that he was found
absent from duties and on an enquiry it
was found that he had left the place of
duty at 08.00 hours on 26.8.1977 and had
not come back. Thereafter he did not turn
up till 31.8.1977. When he came to
Kanpur on 31.8.1977 he was required to
give his explanation for his absence, on
which he submitted a reply and accepted
his guilt, left the place and thereafter did
not turn up for duties.

7. The explanation submitted by the
petitioner vide his letter dated 2.9.1977
clearly states that he had requested Sri
Maharaj Singh to look after the duty on
312 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
27.8.1977, as he had very urgent work.
He admitted that he did not take
permission before leaving duties. On
2.12.1977 the plaintiff was informed as
follows;
"Ref.:
Your
application
dated
14/11/77
It is intimated that you were engaged
as casual rated worker in the Artisan
category
against
temporary
labour
application sanction only, and, therefore,
your engagement on casual rated basis is
governed by the extant rules on the
subject.
You
were
not
permanent
employee of the railway.
Sr. Signal & Telecom. Engineer/MW"

8. I find that Appellate Court grossly
erred in law in holding that the Indian
Railway Establishment Manual, Part II is
non statutory compilation of rules. In L.
Robert D'Souza Vs. The Ex. Engneer
Southern Railway AIR 1982 SC 854 it
was
held
that
Indian
Railway
Establishment Manual Vol. Ii is a
compilation of Rules and is applicable as
conditions of service to the Railway
servants. The plaintiff having worked for
more than six months continuously had
attained the temporary status under para
2511 (1) and could only be terminated
from service after following the procedure
under para 2302 which conforms to para
2505 for termination of service and the
provisions
of
Article
311
(2)
of
Constitution of India. There was no
evidence o record and that the documents
filed by the parties do not justify the
findings of the lower appellate court that
the plaintiff quit his job on his own
accord. This was not even the case set up
in the written statement. The letter dated
2.12.1997 in reply did not even suggest
that plaintiff had quit the job.
9. It is admitted that the Railway
administration did not given any notice of
termination of service to the plaintiffappellant. Even if he had left the place of
his duty without informing his superior
officers, he could have explained his
absence. I find that sufficient explanation
was given by the plaintiff for his absence.
He urgently required leave and that when
he came back on the next date he was not
allowed to join duties. He was just
informed that as a temporary labour his
engagement on casual rated basis is
governed by the rules implying that his
engagement on casual rated basis is
governed by the rules implying that his
services could be disposed off at any time.

10. This matter was not transferred
as Central Administrative Tribunal as the
Second Appeals have been saved by
Section 29 (2) of the Administrative
Tribunals Act. The lower appellate court
committed gross error of law in holding
that the petitioner had quit the job. The
plaintiff had attained the temporary status
of employment. His services could not be
terminated
without
following
the
procedure provided in para 2302 of the
Indian Railway Establishment Manual.

11. Shri Govind Saran, learned
counsel for the defendant respondent
states that the findings that plaintiffappellant had quit his job are findings of
fact, and that the Railway Establishment
Manual is not statutory in nature, vide
The General Manager South Central
Railway Vs. V.R. Siddharh AIR 1974
SC 1755. He further submits that no
substantial question of law arises for
consideration vide Govind Raju Vs.
Mariamman 2005 (2) SCC 500.
1 All] Radhey Shyam Singh-II V. Director of Education U.P., Lucknow and others
313
12. I find that the pleadings and the
documentary evidence led by parties,
clearly raised the question of the status of
employment and its consequences on
termination of service. It is a substantial
question
of
law
which
was
not
appreciated by the Lower Appellate Court
and was wrongly decided against the
plaintiff, who had not quit the job and was
entitled to notice of termination. It was a
case of misconduct and called for an
enquiry before the notice of termination
could be given.

13. The plaintiff as such is entitled
to the reliefs claimed in the suit.

14. The Second Appeal is allowed.
The judgement passed by XII the
Additional District Judge, in Civil Appeal
No. 482 dated 28.1.1981 and the decree
dated 23.2.1985 is set aside. The Plaintiff
suit shall stand decreed in terms of the
directions issued by the trial court. The
plaintiff shall be entitled to the costs of
the suit throughout.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 450 of 2003

Radhey Shyam Singh (IInd) ...Petitioner
Versus
Director of Education, U.P. Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri K.C. Vishwakarma

Counsel for the Respondents:
Sri R.K. Tewari
S.C.
U.P.
Public
Service
Commission
(Reservation)-for
Scheduled
Castes,
Scheduled Tribes and other Backward
classes) Act 1994-Rule 3 (1)-Reservation
on
promotional
post-prior
to
enforcement of Act-its was governed by
the
G.O.
dated
11.12.93-petitioner
belongs to OBC L.T. Grade Teacherclaimed promotion under 50% quota
being senior most L.T. grade Teachermanagement passed resolution on 9.3.02
send for approval- DIOS refused on the
ground out of 6 posts of Lecturer-under
promotion Quota one post is to be filled
up by S.C./S.T. candidate-held-proper.

Held: Para 6

The reservations for SC/ST is as such
applicable in promotions and all the
Government Orders in this regard are
saved by Section 3 (7) of the Reservation
Act, 1994. The objections of the District
Inspector of Schools to the promotion of
petitioner belonging to Other Backward
Class for promotion in 50%, quota is a
such a valid objection. I do not find any
illegality or error in the order of District
Inspector of Schools, to interfere in the
matter. The writ petition is dismissed.
Case law discussed:
1993 (1) ESC-644
2001 (1) U.P.L.B.E.C.-708
1992 (1) SCC-20
1981 UPLBEC-521
2004 (1) ESC-424
2004 (2) UPLBEC-1837

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri K.C. Vishwakarma,
learned counsel for the petitioner and
learned standing counsel.

2. Briefly stated the facts of this case
are that Chhatrapati Shivaji Inter College,
Khajuraul, District Mirzapur, is an aided
and recognised intermediate college. The
petitioner
belongs
to
the
reserved
category (Other Backward Class). He was