Karnataka High Court
The Superintendent Of Post Offices vs H B Shivanna on 16 March, 2018
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
W.P. NO. 34051/2017 (L-RES)
BETWEEN:
THE SUPERINTENDENT OF
POST OFFICES, POST OFFICE,
MANDYA DIVISION,
MANDYA - 571 401.
... PETITIONER
(BY SRI. B. PRAMOD, ADVOCATE)
AND:
H. B. SHIVANNA,
S/O BOREGOWDA,
AGED MAJOR,
EX BPM NITTURHALASAHALLI,
MALAWALLI POST,
KARNATAKA - 571 421.
.... RESPONDENT
(BY SRI. MOHAMED ATAUR RAHMAN, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD 8.11.2016 AT ANNEXURE-A
PASSED BY THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL - CUM - LABOUR COURT, BENGALURU BENCH
IN CR. NO. 3/2014 AND DECLARE THAT THE ORDER IS
WITHOUT JURISDICTION AND NULL AND VOID.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT PASSED THE FOLLOWING:
2
ORDER
This writ petition is filed seeking quashing of the Order dated 08.11.2016 (Annexure-A) passed by the Central Government Industrial Tribunal-Cum-Labour Court, Bengaluru Bench (CGIT for short), in CR No.3/2014 and declare that the said order is without jurisdiction and null and void or to pass such other order as this Court deems fit in the circumstances of the case.
2. The facts of the case in brief are that, the respondent who engaged as GDSPM was involved in certain misconduct. After inquiry, the Inquiry Officer submitted a report stating that, the charges were not proved. The Disciplinary Authority on examining the entire case, disagreeing with the Inquiry Officer's report, called upon the respondent to file objections. Thereafter, the respondent was removed from service. Later, removal was confirmed by the Appellate and Revisional Court. Initially the respondent approached the CAT, later withdrew the Original Application and thereafter approached the CGIT. The CGIT relying on the decision of the Hon'ble Apex 3 Court reported AIR 1996 SC 1271 [Sub-divisional Inspector of Post, Vaikam Vs. Theyyam Joseph has observed that, the Postal and Telecommunication Department is not an Industry and Extra-Departmental Employees in Postal Department are civil servants and not workmen under the industrial Disputes Act. Further, CGIT also relying on a decision of the Hon'ble Apex Court reported in AIR 1968 SC 1413, [Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif & Others] has allowed the respondent's case vide order dated 08.11.2016 holding that, the II Party/Management is not justified in imposing punishment of removal of I party/ H.B. Shivanna from service and also, the I party is entitled for reinstatement, continuity of service and other consequential benefits that he would have received in the absence of the impugned penalty of removal from service.
3. Aggrieved by the said judgment of the CGIT, the II Party/Management has filed this petition, on the ground that the said impugned order is passed without jurisdiction in contravention of the settled position of law and as such, the impugned order is null and void. 4 Further, it is also urged that decision of the Hon'ble Apex Court in the case of Vaikam' s case (supra) is not applicable to the facts of this case as, the respondent is also a Gramina Dak Sevak (GDS), an extra-departmental agent, engaged on temporary basis and he does not fall under the category of the workman for being dealt under the industrial Disputes Act and he cannot be called as a workman under Section 2(s) of the Industrial Disputes Act. Further, it is urged in the petition that, as per Rule 21 of the Department of Posts, Gramin Dak Sevaks (Conduct & Employment) Rules 2001 ('Rules ' for short), 'Every sevak shall at all times maintain absolute integrity and devotion to duty". In the instant case the respondent has misappropriated the Money Order to the tune of Rs.1600/- and the aggrieved person had also filed a complaint against the respondent; When the respondent had approached the CAT in an Original Application No.344/2009 and subsequently withdrawn the application, he could not have agitated his claim afresh before the CGIT by any stretch of imagination and CGIT also could not have examined the issue; The misconduct committed by the respondent is 5 grave in nature and the department had lost confidence in the respondent and department did not want to continue the services of the respondent. The Hon'ble Apex Court in the case of Diwan Singh Vs. LIC of India and Others reported in (2015)2 SCC 341, has held that the loss of confidence is the primary factor to be taken into consideration and not the amount of money misappropriated and sympathy or generosity in such cases is impermissible. Therefore, in the circumstances of the case, the impugned order is in contravention of the settled position of law and it suffers from legal and factual infirmities. Therefore, the CGIT has erred in allowing the claim of the respondent/employee.
4. Learned counsel for the petitioner/Management reiterating the grounds urged in the petition submitted that, non-filing of objections before the CGIT against the respondent/employee itself does not prove the case of the respondent against the department.
5. Learned counsel for the respondent/employee has submitted that, on the above points, it is not open to 6 the petitioner to raise a ground, whether the respondent is workman or not. The said issue has been examined by the CGIT and it has been rightly held that, Gramin Dak Sevaks are the workmen under Section 2(s) of the ID Act, as such, the CGIT has rightly passed an award. Further, the learned counsel for the respondent has submitted that the petitioner/Management has initiated enquiry against the petitioner and dismissed him from service finally. The allegations levelled against the respondent were the subject matter of the Departmental Enquiry and it should not have been held against the respondent. More over the Enquiry Officer was not examined in respect of the documents produced and evidence adduced by the Department.
6. Having heard the learned counsel for the parties, the principal question before this court is, whether the CGIT had got jurisdiction to entertain the case filed by the Gramina Dak Sevaks (GDSs). For every Authority, before whom a case was filed, it is the primary duty of it to see whether that authority has got jurisdiction to entertain the case and proceed further with the matter. 7
7. In regard to the said question, it is relevant to quote here the relevant portion of a decision of the Hon'ble Apex Court in the case of Theyyam Joseph (Supra) at Para-1, which reads as follows:-
"7. The appointment of the respondent is governed by the Rules in Section III of the compilation of Swamy's Service Rules for Extra-
Departmental Staff in Postal Department. The
Rules provide the method of recruitment
thereunder. The age and qualification has been
prescribed between 18 to 65 years. The
educational qualifications have been prescribed with. Matriculation as minimum qualification for Extra-Departmental ED Sub-Postmasters and ED Branch Postmasters. VIII Standard as minimum Educational qualification has been prescribed for ED Delivery Agents, ED Stamp Vendors and all other categories of EDAs and preference is given to the candidates with Matriculation qualification. Income limit and holding of property have been regulated in Rule 3 thereof. It is mentioned that the persons who take over the agency must be one who has an adequate means of livelihood and is a resident of the place as mentioned in the Rules."8
When such being the rules which governs Extra Departmental Staff in Postal Department and the persons are appointed on the basis of the prescribed age, qualification as per the Rules, the removal of any person also should be in accordance with the Rules. When such being the procedure, it is not understandable as to how the Tribunal has held that the Gramin Dak Sevaks are the workmen.
8. Further, at Para-11 of the said case also, the Hon'ble Apex Court has held that:
"11. It would thus be seen that the method of recruitment, the conditions of service, the scale of pay and the conduct rules regulating the service conditions of ED Agents are governed by the statutory regulation. It is now settled law of this Court that, these employees are civil servants regulated by these conduct Rules. Therefore, by necessary implication, they do not belong to the category of workmen attracting the provisions of the Act.
The approach adopted by the Tribunal, therefore, is clearly illegal."9
9. It is clear from the above said decision of the Hon'ble Apex Court that, method of recruitment, conditions of service, scale of pay and the conduct rules regulating the service conditions of ED Agents are governed by the statutory regulation. It is also held therein that, now it is settled law that, these employees are civil servants regulated by the conduct Rules. Therefore, by necessary implication, they do not belong to the category of workmen attracting the provisions of the Act. The approach adopted by the Tribunal, therefore, is clearly illegal. Therefore, in view of the said decision, proceedings relating to such cases to be adjudicated by the Tribunal constituted by the Act as 'Central Administrative Tribunal. Therefore, the Central Administrative Tribunal has got jurisdiction to entertain such proceedings. In the light of the above decision of the Hon'ble Apex Court, the CGIT had no jurisdiction to adjudicate such proceedings. Therefore, the CGIT has committed an error in entertaining the application made by respondent. Hence, the order passed by the CGIT is liable deserves to be set aside for want of jurisdiction and competency.10
In view of the above observation, the petition is allowed. The order dated 08.11.2016 passed by the CGIT-Cum-Labour Court, Bengalurur Bench, in CR No.03/2014 is set aside. However, the liberty is reserved to the respondent/employee to approach the appropriate Forum, if advised.
Sd/-
JUDGE KGR*