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Union Of India And Another v. Ram Kumar Saxena And Others. - WRIT - C No. 1400 of 1984 [2004] RD-AH 323 (19 July 2004)


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Court No.51

Civil Misc. Writ Petition No. 1400 of 1984

Union of India and another Vs. Ram Kumar Saxena and others

Hon'ble V.C.Misra,J.

Heard Sri Lalji Sinha, learned counsel for the petitioner and learned standing counsel on behalf of respondents 2 and 3.

The fact of the case of the petitioner is that, the respondent 1 was employed as a Travelling Ticket Examiner at Bareilly Station.  He was transferred from Bareilly to Hapur by the order of Competent Authority dated 5.6.1971.  He in order to avoid service of the order of transfer filed injunction suit no.255 of 1971 and obtain an interim injection which was subsequently vacated in appeal.  A civil Revision filed by the respondent no.1 also failed. The respondent no.1 filed another suit for injection suit no.123 of 1978 on identical grounds claiming the same relief and in this suit also the respondent no.1 obtained the order of injection which was vacated on 17.2.1976.  The earlier suit no. 255 of 1971 had in the meantime been dismissed. On the vacation of the injection order, the respondent no.1 was actually transferred and spared on 17.2.1975 to Hapur and he was duly informed of the transfer orders.

Meanwhile, the respondent no.1 had applied for leave from 17.1.1975 to 6.2.1975 seeking further extension upto 13.2.1975 before the Competent Authority, who refused to grant the relief and the decision was communicated to respondent no.1through registered post.  The respondent no.1 did not turn up on duty at Hapur and his absence from 17.1.1975 to 13.2.1975 was unauthorized.  The name of the respondent had been struck off at the master roll at Bareilly since he had been transferred to Hapur and thereafter actually spared.  

The respondent no.1 filed a claim petition registered as Case No. 8 of 1975 before the Prescribed Authority and under the Payment of Wages Act at Bareilly claiming the amount of Rs.6821.46 paise as disclosed in the claim petition filed as Annexure No.1 to the writ petition.  The written statement filed on behalf of the petitioner and the jurisdiction of the Prescribed Authority was challenged on the ground that the claim petition was not maintainable at Bareilly, since he had already been transferred and actually spared.  

The respondent no.2 allowed the claim petition vide its order dated 8.101982 and directed to pay the petitioner the wages of Rs. 6821.46 paise in case no.8 of 1975 with nil compensation and Rs. 5874.64 in case no. 17 of 1976 with nil compensation.

The petitioner being aggrieved by the said order filed two appeals No. 273 of 1982 and 274 of 1982.  Two cross appeals were also filed by respondent no.1, R.K.Saxena being appeal nos.267 of 1982 and 268 of 1982 in the Court of District Judge, Bareilly, respondent no.3.  All the appeals were connected together and heard and vide order dated 10.9.1983 all four appeals were dismissed by one and common judgment, which is Annexure No.4 to the writ petition.  

The appellate authority-respondent no.3 dismissed the appeal of the petitioner on the  very ground that no specific date of the service of the order of transfer of Mr.Saxena had been disclosed and since it could not be proved that the transfer order had actually been served on him, though he may have had knowledge of the same, it will be presumed that Mr. Saxena continued on his posting at Bareilly.  The burden of proof lay on the railway administration.  The appellate authority has taken into consideration Rule 26 of Para 7 (Misc.) of Railway Servants (Disciplines and Appeal) Rules, 1968, according to which it must be served personally on the railway servant concerned or through registered post besides it there is no other alternative mode of service.  The awareness of the transfer order does not amount to legal service on the employee.  It has been further found that the railway administration failed to prove the personal service on Mr.Saxena.  However, the second mode of service through registered post has not been disclosed to have been effected on the specific date in the written statement, and even if the service of the transfer order through registered post dated 17.2.1975 were assumed it falls within the period subsequent to the passing of the stay order by the District Judge, Bareilly and, therefore, that  service could not be availed by the railway administration.  Even the registration receipt or the original envelop containing the transfer order returned by the postal authority, have not been filed by the petitioner on record. The respondent no.3 also found that the alleged dispatch of the transfer order of Mr. Saxena through registered post, was not substantiated on record and oral evidence so led on behalf of the petitioner-the railway administration could not fulfill the purpose of proof in view of the Section 91 of the Evidence Act. Respondent no.3 has also held that since Mr. Saxena was persuing a number of legal action before various courts of law and obtained an injunction order which was ultimately vacated on 17.2.1975, and, therefore, he was not entitled to any compensation to be awarded in his favour.

I have looked into the record and heard the learned counsel for the petitioner at length.  After thorough examination and critical scrutiny of the pleadings and material on record and the relevant evidence the respondents no.2 and 3 arrived at a well reasoned Judgment and Order dated 8.10.1982 and 10.10.1983 on the basis of   the findings of fact.  The petitioner has not been able to demonstrate before this Court that the findings of fact recorded in the impugned order suffers from any illegality or error apparent on the face of the record.  More so, the said findings of fact arrived at by the respondents on the basis of which the impugned orders have been passed being based on relevant material on record are not open to challenge before this Court while exercising its special and extra ordinary jurisdiction under Article 226 of the Constitution of India.

I do not find any illegality having been committed in passing the impugned order dated 8.10.1982 and 10.10.1983 (Annexure Nos III and IV) to the writ petition, passed by respondent nos.2 and 3 in the claim petition filed by respondent no.1.

The writ petition is dismissed.  The stay order dated 27.1.1984 stands vacated. No order as to costs.

Dated: 19.7.2004



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