A break in service of a Government servant cannot be ordered without observing the principles of natural justice, which includes affording an opportunity to the employee concerned to explain their absence.

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.

3. 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 dut