Central Administrative Tribunal - Ahmedabad
Satish Kumar vs Posts on 23 February, 2024
1
OA No255/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.255 of 2022
Dated this the 23rd day of February, 2024
Reserved On:08.12.2023
Pronounced On: 23.02.2024
CORAM :
HON'BLE DR. A.K.DUBEY, MEMBER (ADMINISTRATIVE)
HON'BLE MR. UMESH GAJANKUSH MEMBER (JUDICIAL)
Satish Kumar,
Son of Mahendra Singh,
Aged 28 years,
Occupation: Unemployed,
Residing at: VPO -Badbar,
The-Buhana, Jhunjhunu,
Rajasthan 333 502. Applicant
(By Advocate: Mr.Joy Mathew)
Versus
1) Union of India,
Notice to be served through
The Secretary,
Ministry of Communications and Information Technology,
Department of Posts, (Recruitment Division),
Dak Bhavan, Sansad Marg New Delhi 110 001.
2) Director General of Posts,
Dak Bhavan, Sansad Marg,
New Delhi 110 001.
3) The Chief Postmaster General,
Gujarat Circle, Kanpur,
Ahmedabad - 380 001.
4) Postmaster General,
Rajkot Region,
Rajkot - 360 001.
5) Superintendent,
O/o Superintendent of
RMS, 'RJ' Division,
Rajkot 360 001.
....Respondents
(By Advocate :Ms.R.R.Patel)
2
OA No255/2022
ORDER
Per: Hon'ble Mr.Umesh Gajankush, Member (J)
1. By way of present Original Application, the applicant is challenging the inaction on the part of the respondents in not reinstating him in service consequent to the orders passed by the Hon'ble Supreme Court of India. The present Original application has been field by the applicant seeking following reliefs:-
"(A) Call for the record of the case, (B) Directing the respondents to reinstate the applicant in service with all consequential benefits including back wages with 12% interest, (C) Passing any other appropriate order."
2. Brief facts stated in the original Application are that:
2.1. Pursuant to the notification dated 21.02.2014, the applicant participated in the selection process and was thereafter appointed as Sorting Assistant in the year 2015. However, the said appointment was cancelled on 23.12.2015 .
2.2 Being aggrieved by the cancellation of examination, a large number of original applications were filed before this Tribunal. This Tribunal allowed the said Original Applications. The said order was challenged before the Hon'ble High Court of Gujarat by filing various Special Civil Applications and by a judgment dated 16.08.2016 the Hon'ble Gujarat High Court was pleased to allow all the Special Civil Applications filed by the respondents.
2.3 The aforesaid order was the subject matter of challenge before the Hon'ble Supreme Court of India and vide order dated 13.07.2017, the Hon'ble Supreme Court of India was pleased to dispose of all the petitions inter alia directing the respondent department to reinstate those persons who were not suspected of having committed any malpractice and had not undergone the prescribed courses, with all consequential benefits of 50% back wages with liberty to the respondent department to take action against them in case subsequently it came to be found in the investigation that they had indulged in some malpractices. Pursuant to the aforesaid order dated 21.11.2017, the applicant was asked to remain present before the respondent No.5 and on 3 OA No255/2022 being present, he was asked to put 100 signatures on blank papers and it seemed that respondent No.5 had forwarded those signatures along with other documents to CFSL Hyderabad for signature verification.
2.4 Since the orders passed by the Hon'ble Supreme Court was not complied with by the respondents, Contempt Petitions came to be filed before the Hon'ble Supreme Court. Hon'ble Supreme Court was pleased to dispose of these Contempt Petitions in CP(C) No.711/2018 clarifying the earlier order dated 13.07.2017 to the extent that those persons in the five regions who had been selected are were not tainted, but willing to undergo the course be permitted to join the course even if appointment letter had not already been issued. It is stated by the applicant that on 20.02.2019 and on 01.10.2019, CFSL Hyderabad submitted their opinion and in July, 2019 similarly situated candidate Shri Ashishkumar M Patel was reinstated by the respondents.
Inspite of seeking information in respect of reinstatement of the applicant, reinstatement has not been made nor has any communication been issued though certain similarly placed candidates have been reinstated in service. Therefore, the present original application has been filed.
3. Along with OA, M.A No.232/2022 was filed for condonation of delay and according to the applicant, excluding the Corona period there is only a delay of one month and 6 days'.
4. After notice, official respondents have filed reply on merits. It appears that no separate reply to MA No.233/2022 has been filed but in reply, official respondents opposed the claim on the ground of delay and on merits. A stand has been taken that the examination in question was conducted by M/s CMC Limited. It is a fact that sample signatures of the applicant were obtained and these, together with the signature made on the OMR sheet, Data Entry Sheet and Typing Test Evaluation Sheet were sent to CFSL Hyderabad. Respondent No.5 had been informed by the CFSL Hyderabad that the person who wrote the sample signature (S1to S5) did not write the signature on the OMR Sheet Q-1. On the basis of opinion of CFSL report, respondent maintained that material irregularities were found and hence the applicant was not/cannot be reinstated. It also claimed that all the procedures were carried out as per order dated 13.07.2017 of the Hon'ble Supreme Court of India.
4 OA No255/20225. Thereafter, rejoinder was also filed by the applicant reiterating the averments mentioned in the OA.
6. We have heard the learned counsel for the parties and perused the material available on record.
7. In the present case, MA No.232/2022 was filed by the applicant for Condonation of Delay and according to him there is a delay of one month and 6 days excluding Corona period. No separate reply has been filed to this MA although in reply on merits condonation of delay has been opposed. However, fact remains that the adverse material i.e. CFSL report which is used against the applicant in not reinstating him in fact was supplied to the applicant on 25.02.2022 (Annexure-A/8) and that too after applying under RTI Act. Under these circumstances, if the said date is taken into consideration, it is apparent that the original application was filed on 05.07.2022 ie. within 6 months. However, it appears that applicant has counted the period of limitation from July 2019 when similarly situated employee was reinstated and accordingly by excluding Corona period, has sought condonation of one month and 6 days delay. Thus considering that aspect the delay is properly explained, MA for CoD No.232/2022 is allowed.
8. Learned counsel for the applicant submitted that the impugned action of the respondents in not reinstating the applicant is illegal, arbitrary and discriminatory. Similarly situated employees who participated in the same selection process had already been reinstated in service in terms of the order passed by Hon'ble Supreme Court of India.
9. During the course of arguments, learned counsel for the applicant relied upon the order dated 13.04.2023 passed in OA No.2001/2022 by the Principal Bench, New Delhi and submitted that in view of the aforesaid order, applicant is entitled for reinstatement with consequential benefits.
10. The learned counsel for the respondent supported the impugned action and submitted that in view of the stand taken in reply, the applicant was not entitled for any relief.
5 OA No255/202211. After hearing the learned counsel for the applicant and on perusal of the record, it is necessary to observe that the order dated 13.04.2023 passed by the Principal Bench, CAT, New Delhi in OA No.2001/2022 in case of Sukhvinder vs Union of India & Ors. allowed the original application of the said applicant in part. The aforesaid order was passed by the tribunal on the basis of order passed in OA No.2440/2021 in Sumit Surajmal vs UOI & Ors. decided on 30.05.2022 by the Principal Bench New Delhi (appears to be incorrectly mentioned as OA No.2444/2021 in para No.3 of the order in Sukvinder's case). And in the case of Sonu vs UOI & Ors. in OA No.435/2021 this Tribunal while taking note of PB CAT decision in OA No.2756/2019, titled Shri Sanjeev Kumar and Or. vs. Director of Postal Services & Ors. decided on 10.03.2022 observed as under in its order dated 08.04.2022.
"11. The factual matrix of the cases in hand and that in OA No.222/2019, titled Pramod Kumar vs. Union of India and others, decided by the Ahmedabad Bench of this Tribunal vide Order/Judgment dated 12.7.2021 (Annexure A/1 to the MA) and that in OA No.223/2019, titled Atul Rajendraprasad Yadav vs. Union of India and others, decided by the Ahmedabad Bench of this Tribunal vide Order/Judgment dated 21.10.2021 (Annexure A/1 to the MA), are not in dispute. In para 11 of the aforesaid Order(s)/Judgment(s), Ahmedabad Bench of this Tribunal has recorded that 'the reason assigned for not reinstating the applicant is stigmatic and cannot be said to be simpliciter. The said stigma will ruin the career of the applicant. The respondents ought not to have passed such an order without affording an opportunity to the applicant to explain his position'. Paras 12 to 14 of the said Orders/Judgments of the Ahmedabad Bench (supra) read as under:-
"12. At this stage, it is appropriate to refer the law laid down by the Hon'ble Apex Court in the case of Pavanendera Narayan Verma Vs. Sanjay Gandhi PGI of Medical Science reported in (2002) SCC (L&S) 170 wherein at para-21 the Hon'ble Apex Court as held as under :-
"21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct
(c) which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld."
In the present case, as noted hereinabove before issuance of order of termination, no inquiry was held. Subsequently, in light of direction issued by the Hon'ble Apex Court in the SLP filed by the applicant and the identically situated candidates, the respondent had undertaken the exercise to re- verify the identity of the candidate before their reinstatement and in this regard the respondent had obtained 6 OA No255/2022 hundred signatures of the applicant and had sent for examination along with specimen copy to the CFSL and sought CFSL's report with respect to questioned signatures of the applicant by way of formal inquiry. The respondent Postal Department assigned the reason for not reinstating the applicant, that there was adverse report of CFSL against the applicant which amounted to allegation of moral turpitude against the applicant and finally culminated in a finding of guilt which resulted in issuance of the impugned order (Ann. A/1). All the three factors as stated by Hon'ble Apex Court in the case of Pavanendra Narayan Verma (Supra) are present in the case at hand. It can be seen that a plain reading of impugned decision dated 07.01.2019 (Ann. A/1), would indicate that it is stigmatic in nature. Thus, we are of considered opinion that the impugned decision of termination and denial of reinstatement of the applicant is punitive in nature and the same is stigmatic. The impugned order should not have been passed by the respondent (Postal Department) without observing of principles of natural justice. The said impugned orders therefore, are not sustainable in the eyes of law.
The impugned decision is also not tenable in light of dictum laid down by Hon'ble Apex Court in the case of Magan Biharlilal Vs. State of Punjab & Haryana reported in AIR 1977 SC 1091 wherein it was held that conviction cannot be based on the opinion of the hand writing expert as it is unsafe to base a conviction solely on expert opinion without any substantial corroboration. In the present case, the respondent relied upon the CFSL hand writing expert opinion and based on it denied the reinstatement of the applicant and that too without any other corroboration whatsoever. In absence of any material contrary to what is noted hereinabove, the decision making process and the conclusion arrived at by the respondent, in our considered view is vitiated and suffers from legal infirmity and therefore the impugned orders deserve to be quashed and set aside.
13. In view of above discussions and in light of law laid down by Hon'ble Apex Court as referred hereinabove, the impugned order (Ann. A/1) passed by respondent no.3 is quashed and set aside. The case is remitted back to the respondent no. 2 & 3 with a direction to consider the candidature of the applicant for reinstatement in light of what is stated hereinabove as also, if no other adverse report is found against the applicant by following the principles of natural justice. It is expected that the respondent concerned will carry out the directed exercise within a period of 60 days positively from the date of receipt of the copy of this order.
14. Accordingly, OA stands partly allowed. No order as to cost."
12. The aforesaid order of Sumit Surajmal vs Union of India case was challenged by the department by filing WP (C) No.15341/2022 before the Hon'ble High Court of Delhi and said writ petition was dismissed.
13. The aforesaid order was further challenged by the department by filing SLP (C) No.3280/2023 before Hon'ble Supreme Court which was dismissed too by order dated 03.03.2022. Thus the Sumit Surajmal case order has attained finality.
7 OA No255/202214. The aforesaid facts clearly show that based upon the CFSL report, the action of the postal department was not upheld by the Tribunal and this Tribunal's order was affirmed by Hon'ble High Court of Delhi and Hon'ble Supreme Court of India.
15. In view of the aforesaid factual matrix, the present OA is partly allowed. The impugned action of the respondents in not reinstating the applicant is arbitrary and discriminatory. The respondents are directed to consider the candidature of the applicant for reinstatement in the light of what is observed herein above by following the principles of natural justice. It is further directed that the respondent shall comply with the aforesaid exercise as expeditiously, as possible but certainly within 60 days from the date of receipt of copy of the order. No order as to Cost.
(UMESH GAJANKUSH) (A.K.DUBEY) Judicial Member Administrative Member SKV