Kerala High Court
The Chief Post Master General vs M.K. Balakrishnan on 8 January, 2020
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941
OP (CAT).No.322 OF 2019
AGAINST THE ORDER/JUDGMENT IN OA 65/2016 DATED 01-08-2019
OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
1 THE CHIEF POST MASTER GENERAL,
KERALA CIRCLE, TRIVANDRUM - 695 033.
2 THE POSTMASTER GENERAL,
NORTHERN REGION, KOZHIKODE - 673 011.
3 THE SUPERINTENDENT OF POST OFFICES,
OTTAPALAM DIVISION, OTTAPALAM - 679 101.
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
RESPONDENT/S:
M.K. BALAKRISHNAN,
AGED 45 YEARS
S/O.M.NARAYANAN NAIR, MTS OTTAPALAM HO,
OTTAPALAM DIVISION - 679 101, RESIDING AT
MADATH KOORTHA VALAPPIL, KUDALLUR P.O., PALGHAT
DISTRICT - 679 554.
R1 BY ADV. SRI.M.A.SHAFIK
OTHER PRESENT:
SRI.M.A.SHAFIK
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 08.01.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(CAT) No.322/2019
2
JUDGMENT
Dated this the 08th day of January, 2020 Vinod Chandran, J.
The postal establishment challenges the order of the Tribunal, directing the applicant before the Tribunal to be placed in the order of seniority among the recruits of 2013, declared eligible for appointment as Multi-Tasking Staff (for brevity "MTS") on July 2013. The Tribunal also directed all consequential benefits including arrears of salary in the post of MTS.
2. The learned Assistant Solicitor General would strenuously contend that the order of the Tribunal gives a total go-by to the principle of no work no pay. It is argued that in the present case there is not even a ground for granting notional appointment from an earlier date since O.P(CAT) No.322/2019 3 there was a disciplinary proceeding pending against the applicant, which necessitated the appointment to be kept in abeyance, though he was declared eligible as per the test conducted in June, 2013. It is admitted that the disciplinary proceedings ended in exoneration of the applicant; which, if at all could only enable a notional appointment from an earlier date, without any payment of salary in the post to which appointment was to be made as per the selection. The learned ASG also relies on Annexure R10 and R11 judgment of the Hon'ble Supreme Court and this Court respectively, to advance his contentions.
3. Sri. M.A Shafeeq appearing for the applicant would contend that there was a concerted attempt by the Department to keep the applicant away from the post to which he is declared to be eligible for appointment. In fact when the results O.P(CAT) No.322/2019 4 of the selection were declared on 04.07.2013 there was no enquiry pending against the applicant and hence he ought to have been appointed to that post. All the persons selected, were appointed immediately on declaration of results and he was kept away for a period of one month and a show cause notice issued on 02.08.2013. The enquiry culminated in finding the applicant to be not guilty of the charges alleged. The learned Counsel also took us through the enquiry report which is produced as Annexure A7 in the O.A. The report, after finding the applicant to be not guilty, brought to the notice of the authorities, the culpability of PW6, the Sub Post Mater(for short "SPM") in having attempted possession of passbooks without following due procedure. It is argued that the proceedings were initiated only to keep the applicant from being appointed.
O.P(CAT) No.322/20195
4. We refer to the parties and documents as available in the O.A. The applicant was working as Gramin Dak Sevak Mail Packer (GDSMP). In the year 2013 the postal authorities called for applications for appointment to the post of MTS, in Group D of the regular service of the Department. GTSMP were employed outside the regular service of the Department as has been found by the Hon'ble Supreme Court in Y.Najithamol v. Soumya S.D (Civil Appeal No.91/2015)(Annexure R10).
5. Coming back to the facts of the instant case, the results were declared and the list of selected candidates were published on 04.07.2013. There was no charge sheet issued against the applicant as on that date. The charge sheet was issued on 02.08.2013, alleging that the applicant has obtained a Savings Bank pass book from one account holder, which account was part of a larger O.P(CAT) No.322/2019 6 fraud perpetrated in the post office in which the applicant was working. The enquiry was completed on 17.12.2014 and the report at Annexure A7 was dated 09.02.2015. The Enquiry Officer exonerated the applicant of the charges alleged. It was found that there was absolutely no evidence to show that the subject passbook was obtained by the applicant. Though it was admitted by the applicant that certain passbooks were obtained from the account holder, it was the specific contention that the same were obtained only on direction of the Sub Post Master(SPM) which was accepted by the SPM, who was examined as PW6. The account holder also did not have any grievance against the said action since those pass books were returned to her. As we noticed the Enquiry Officer having exonerated the applicant, made some observations against the SPM who had acted in violation of the specific O.P(CAT) No.322/2019 7 procedure spelt out in the rules; for the attention of the authorities.On the exoneration of the applicant the applicant was appointed on 27.03.2015 and he joined on 01.04.2015 in the post of MTS.
6. While the Original Application was pending, a selection was conducted for the post of Postal Assistant in which the applicant was declined participation for reason of his having not completed the tenure of eligibility. The applicant moved the Tribunal, which directed participation. As is seen from the order of the Tribunal eventually he obtained 3rd rank and there were only two posts available. The question of antedating the applicant's appointment does not arise on the issue of deeming eligibility for being considered for promotion.
7. The Tribunal, however, found that the O.A itself was for antedating his appointment with O.P(CAT) No.322/2019 8 effect from July 2013 with all consequential benefits which relief was granted. The principle of no work no pay has its exceptions when otherwise found on facts.
8. A clear administrative lapse in making the appointment or promotion for which the candidate could not at all be held responsible requires extraordinary remedies to be applied. In the present case, the contention of the Department was that the applicant's appointment was kept in abeyance for reason of the pending enquiry proceedings. As we noticed, the show cause notice was issued only on 02.08.2013. The official respondents filed an additional reply statement dated 25.07.2017, to the rejoinder filed by the applicant. The specific contention taken is that the disciplinary proceedings were contemplated against the applicant before the date of O.P(CAT) No.322/2019 9 declaration of results. The letter issued by the Assistant Superintendent of Post Offices, Pattambi Sub Division directing disciplinary action under Rule 10 of Gramin Dak Staff (Conduct and engagement) Rules, 2011 is produced as Annexure R8. Annexure R9 is the transfer note dated 03.07.2013 which is also relied on to assert the initiation of disciplinary proceedings. However, it is admitted that the charge sheet was issued only on 02.08.2013. In this context we have to refer to the decision of Union India Vs. K.V Janakiraman (1991) 4 SCC 109 which dealt with the specific question on how the procedure of sealed cover has to be resorted to in case of pending disciplinary proceedings or criminal proceedings against an employee.
9. We also have to observe that the sealed cover procedure is a measure confined to O.P(CAT) No.322/2019 10 promotion and not to direct recruitment, the latter of which is the procedure resorted to; for appointment to the post of MTS in the Postal Department as has been held in Annexure R10. Be that as it may, the sealed cover procedure can be resorted to against an employee, in consideration of promotion, only when a charge sheet is issued in the case of a disciplinary proceedings and the charges are read over and the plea of the accused recorded in the case of criminal proceedings. There is no measure permitting the Postal Department to keep in abeyance direct recruitment for reason of contemplation of disciplinary proceedings nor could such a seal cover procedure be resorted to on such contemplation in the case of promotions. The declaration made in Annexure R10, as to the appointment to the post of MTS, being a direct recruitment, hence stands against the official O.P(CAT) No.322/2019 11 respondents. It discloses a deliberate intention to delay appointment. K.V Janakiraman also held that rule of 'no work no pay' is inapplicable when employee though willing, is not allowed to work.
10. Further reliance placed on Annexure R11 judgment of this Court cannot also be countenanced. Annexure R11 was a case in which, due to administrative lethargy appointments of Post Men on direct recruitment was delayed. By reason of the delay the Postmen appointed, could not complete the tenure of five years for participation in selection of promotion to the post of Postal Assistants. The Post Men sought for antedating their appointment for the purpose of enabling them to participate in the selection, deeming them to have completed their required tenure from the date on which they ought to have been appointed. A Division Bench of this Court declined the said O.P(CAT) No.322/2019 12 relief. That does not prevent us from considering the issue in the present case where facts are quite distinct and different.
11. The only case of the official respondent is that there was a disciplinary enquiry contemplated. This could not have been a ground to deny the appointment, since there is no statutory rule pointed out prohibiting the appointment. The charge sheet was issued a month after the declaration of eligibility for selection and all other persons who were selected where appointed in the meanwhile. In such circumstances we find the direction of the Tribunal to antedate the appointment of the applicant in the correct position among recruits of 2013, to be perfectly in order. The facts of the present case are one which commend us to uphold the further direction of the Tribunal that all consequential benefits including O.P(CAT) No.322/2019 13 arrears of salary in the post of MTS would be paid to the applicant from the date of his appointment in 2013.
12. The learned ASG also has a contention that the appellant ought to have approached the Tribunal for appointment at the initial stage itself. We cannot countenance such a contention since the applicant who is continued as GDSMP, outside the regular service of the Department, would have normally waited for his appointment after his selection was declared on 04.07.2013. There was no cause for approaching the Tribunal within a month from the date of declaration of selection. On 02.08.2013 there was a show cause notice issued which would have deterred him from approaching the Tribunal. As an obedient employee, that too outside the service of the Department, he had subjected himself to the O.P(CAT) No.322/2019 14 enquiry and on his being exonerated he joined the promoted post and immediately thereafter Annexure A9 representation dated 13.02.2015 was filed. This was immediately after Annexure A7 order; seeking promotion with retrospective effect from 04.07.2013. The promotion however, was made prospective by Annexure A10 dated 27.03.2015. Against this a representation dated 17.04.2015 (Annexure A12) was moved by the applicant and the O.A 65/2015 filed within the time stipulated . We do not find any lethargy on the part of the applicant in having not agitated the cause of his appointment from 2013 itself.
13. In fact by Annexure A5 dated 24.09.2013 immediately after the issuance of charge sheet, the applicant had approached the authority seeking appointment which was not responded to by the authority. We reiterate that O.P(CAT) No.322/2019 15 we are not shown any reasonable legal ground or reason by which the appointment of the applicant was kept in abeyance. The only reason projected is of pending disciplinary proceedings and there is no disciplinary proceedings pending, as on the date of selection.
The Original Petition (CAT) would stand dismissed. It is submitted that a contempt proceedings is pending before the Tribunal. We direct the same be kept in abeyance for a period of three months within which time the applicant would be given the benefits as directed by the Tribunal. There is no order as to costs.
Sd/-
K. VINOD CHANDRAN, JUDGE.
Sd/-
V.G. ARUN, JUDGE.
Jma/ O.P(CAT) No.322/2019 16 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.65 OF 2016.
EXHIBIT P1- A1 TRUE COPY OF THE LETTER NO.STAFF/23/DIG/2015 DATED 27/5/2015 ISSUED BY THE AD (STAFF) OF THE 2ND RESPONDENT.
EXHIBIT P1-A2 TRUE COPY OF THE LETTER NO.B2/4/RECTT.
DATED 29/5/2015 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P1-A3 TRUE COPY OF THE MEMO NO.B2/4/RECTT/2012 DATED 4/7/2013 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P1-A4 TRUE COPY OF THE MEMO ADA/PTB/01/2013- 14 DATED 2/8/2013 ISSUED BY THE ASST.
SUPERINTENDENT OF POST OFFICE.
EXHIBIT P1-A5 TRUE COPY OF THE REPRESENTATION DATED 24/9/2013 SUBMITTED BEFORE THE 2ND RSPONDENT.
EXHIBIT P1-A6 TRUE COPY OF THE REPRESENTATION DATED 7/4/2014 SUBMITTED BEFORE THE 1ST RESPONDENT.
O.P(CAT) No.322/201917 EXHIBIT P1-A7 TRUE COPY OF THE REPORT NO.PM/IA/2/2013 DATED 17/12/2014 OF THE INQUIRY OFFICER. EXHIBIT P1-A8 TRUE COPY OF THE MEMO NO.ADA/PTB/01/2013-14 DATED 9/2/2015 OF THE ASP, PATTAMBI DIVISION.
EXHIBIT P1-A9 TRUE COPY OF THE REPRESENTATION DATED 13/2/2015 SUBMITTED BEFORE THE 3RD RESPONDENT.
EXHIBIT P1-A10 TRUE COPY OF THE MEMO NO.B2/4/RECTT/2012 DATED 27/3/2015 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P1-A11 TRUE COPY OF THE ORDER NO.PF/MKB DATED 30/3/2015 ISSUED BY THE POSTMASTER, OTTAPALAM.
EXHIBIT P1-A12 TRUE COPY OF THE REPRESENTATION DATED 17/4/2015 SUBMITTED BEFORE THE 3RD RESPONDENT.
EXHIBIT P1-A13 TRUE COPY OF THE SENIORITY LIST OF GR.D OFFICIALS OF OTTAPALAM DIVISION. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN.
EXHIBIT P2-R1 TRUE COPY OF THE BIAS PETITION FILED BY THE APPLICANT.
EXHIBIT P2-R2 TRUE COPY OF MEMO OF THE REVIEWING AUTHORITY SUPERINTENDENT OF POST OFFICES, OTTAPALAM MEMO NO.F1/03/III/2011-12 DATED 14/03/2014. EXHIBIT P2-R3 TUE COPY OF JUDGMENT IN OA NO.1088/2014 OF THIS TRIBUNAL.
EXHIBIT P2-R4 TRUE COPY OF MEMO OF O.P(CAT) No.322/2019 18 CAT/AJITHKUMAR/KALLAMALA/ DATED 19/2/2015 ISSUED BY 3RD RESPONDENT. EXHIBIT P2-R5 TRUE COPY OF LETTER FORWARDING ANNEXURE A12 REPRESENTATION.
EXHIBIT P2-R6 TRUE COPY OF INTIMATION FORWARDED TO POSTMASTER GENERAL, KOZHIKODE VIDE LETTER NO.B2/04/RECTT/2012 DATED 28/4/2015.
EXHIBIT P4-R7 TRUE COPY OF ORDER OF POSTMASTER GENERAL, KOZHIKODE COMMUNICATED VIDE LETTER NO.STAFF/23/DLGS DATED 27/5/2015. EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS. EXHIBIT P4-R8 TRUE COPY OF THE LETTER NO.F1/03/VII/2012-2013 DATED OTTAPALAM 1 THE 15/5/2013 ISSUED BY THE 3RD RESPONDENT INSTRUCTING TO INITIATE RULE 10 INQUIRY AGAINST THE APPLICANT. EXHIBIT P4-R9 TRUE COPY OF THE TRANSFER NOTE DATED 3/7/2013 TRANSFERRING CHARGE OF PATTAMBI SUB DIVISION BY ASST.
SUPERINTENDENT OF POST OFFICES, PATTAMBI.
EXHIBIT P4-R10 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.91/2015 FILED BY NAJITHAMOL Y AND OTHERS BEFORE THE HON'BLE SUPREME COURT OF INDIA.
EXHIBIT P4-R11 TRUE COPY OF THE JUDGMENT IN OP(CAT) NO.327/2016 FILED BY SMT.INDUKALA C.S. AND OTHERS.
O.P(CAT) No.322/201919 EXHIBIT P5 TRUE COPY OF THE MISCELLANEOUS APPLICATION NO.2018 FILED BY THE RESPONDENT.
EXHIBIT P5 M.A.1 TRUE COPY OF THE LETTER NO.RECTT/10- 3/2018 DATED 30/10/2018 ISSUED BY THE AD (ESTT & RECTT) OF THE 1ST RESPONDENT. EXHIBIT P5 MA2 TRUE COPY OF THE LETTER NO.B1/6/6LGO 2018 DATED 14/11/2018 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P5 MA3 TRUE COPY OF THE LETTER NO.B1/6/LGO 2018 DATED 3/12/2018 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE ORDER IN OA NO.65 OF 2016 DATED 01/08/2019.