Central Administrative Tribunal - Ernakulam
M R Ramadas vs M/O Communication & Information ... on 28 July, 2017
Author: P.Gopinath
Bench: P.Gopinath
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/01055/2016
Friday, this the 28th day of July 2017
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
M.R.Ramadas,
S/o.late N.V.Raghavan Nair,
Driver, MMS Ernakulam.
Residing at Muthirakkaparambil House,
Avanoor P.O., Varadiyam, Thrissur - 680 541. ...Applicant
(By Advocate Mr.M.Paul Varghese & Desi Matthai)
Versus
1. The Union of India represented by Secretary,
Ministry of Communications & IT, Department of Posts,
Dak Bhavan, New Delhi - 110 001.
2. The Director General Posts,
Dak Bhavan, New Delhi - 110 001.
3. The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram - 695 033.
4. The Postmaster General,
Central Region, Kerala Circle,
Kochi - 682 020.
5. The Director of Postal Services,
O/o.the Postmaster General, Central Region,
Kochi - 682 020.
6. The Assistant Director (Mails),
O/o.the Postmaster General, Central Region,
Kochi - 682 020.
7. The Manager,
Mail Motor Services,
Ernakulam, Kochi - 682 016.
8. The Superintendent,
RMS, 'EK' Division, Ernakulam - 682 011.
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9. The Assistant Superintendent of Posts,
Ernakulam RMS, Ernakulam, Kochi - 682 016.
10. The Assistant Superintendent of Posts,
Kochi International Mail Centre,
MMS Premises, Ernakulam, Kochi - 682 016.
11. The Assistant Superintendent of Posts,
MMS Ernakulam, Kochi - 682 016. ...Respondents
(By Advocate Mr.K.Kesavankutty,ACGSC)
This application having been heard on 11 th July 2017, the Tribunal on
28th July 2017 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant employed as Driver in the respondent Department's Mail Motor Service at Ernakulam is aggrieved by Annexure A-9 and Annexure A-22 dies non orders, Annexure A-13 and Annexure A-15 Appellate and Revisionary Orders and the non consideration of Annexure A-25 Appeal against Annexure A-22.
2. Applicant admits that the post of Manager, MMS is lying vacant with effect from 1.1.2012. The 2 nd respondent is the authority competent to fill up the vacancy and the 3 rd and 4th respondents have authority to make temporary arrangements for a period up to 4 months. None of the competent authorities have taken any action to fill up the vacancy or to delegate the powers of the post. The 6 th respondent, who is having no independent statutory powers, issued Annexure A-16 order giving power to the 8th respondent without authority. The 8 th respondent issued Annexure A-17 order to carry out the operational duties and placed the 9 th respondent as the incharge of the unit. The said delegation/sub delegation is without .3.
authority, argues the applicant. Following Annexure A-17 order, the 9 th respondent started discharging the statutory functions of the Manager, MMS. There is no sanctioned post of ASP in MMS Ernakulam Unit. The 9th respondent exercised the statutory powers of the Manager, MMS to sanction earned leave and other kinds of leave. The applicant argues that the 9th respondent started harassing him by putting him on continuous duty and denying him eligible leave and weekly off. The applicant applied for earned leave on medical grounds to the Manager, MMS for the period from 18.2.2013 to 21.2.2013 and from 1.5.2013 to 3.5.2013 which were denied and dies non was ordered by the 9 th respondent and Annexure A-9 orders issued by ASP, MMS Ernakulam. Appeal against the order of dies non submitted to the 5th respondent, mainly on the ground that the 9 th respondent has no authority, was rejected vide Annexure A-13 order. Revision petition submitted to the 3rd respondent was also rejected vide Annexure A-15 order. The reason for rejecting the appeal and the revision petition was stated to be that the power to grant leave was delegated to the ASP by the 8 th respondent vide Annexure A-17 order.
3. The applicant argues that there is no sanctioned post of ASP in MMS, Ernakulam nor has any competent authority appointed any one as the ASP in MMS. An official who was the ASP in Ernakulam RMS has issued Annexure A-5 memo, to whom no powers of the Manager MMS have been duly delegated. Leave for the applicant is governed by the CCS (Leave) Rules, 1972. The names of authorities competent to grant leave are given in the 1st schedule to the said Rules marked as .4.
Annexure A-6. According to the Rules the authority competent to grant earned leave is the appointing authority or any subordinate authority to whom the appointing authority may delegate the power, subject to any condition that may be specified in the delegation. The appointing authority in respect of the staff of MMS Ernakulam is the Manager, MMS and hence the Manager MMS is the competent authority to grant earned leave to the applicant. The Manager, MMS or any higher authority has not delegated the power to grant leave to the ASP, Ernakulam RMS. The 6th respondent had no independent authority to delegate any administrative or statutory powers vested in the Manager, MMS to the 8th respondent, Superintendent RMS. The 8th respondent, who himself was not duly delegated with the powers of Manager, MMS, had no authority to sub-delegate any such statutory powers to the 9 th, 10th or 11th respondents. As such Annexure A-16 and Annexure A-17 to the extent to which it delegates the statutory powers to be exercised by the 7 th respondent to respondents 8 to 11 is not sustainable, argues the applicant. As per the Schedule of Administrative Powers given in the Post Office Manual Vol.III, the 3rd and 4th respondents are delegated with the powers to make temporary arrangements in the post up to 4 months for the functioning of the unit, by authorising another officer having similar status to discharge current duties of the vacant post. Officers posted to discharge current duties if any do not have powers to discharge statutory functions of the post. So Annexure A-9 is not sustainable and Annexure A-13 and Annexure A-15 are liable to be set aside. The imposition of dies non on 11.7.2015 is challenged as illegal and unreasonable since the applicant had performed .5.
9 hours of duty on the date, including night hours. The leave of the applicant on medical grounds with necessary certificates should not have been interpreted as participation in strike. Reliefs prayed for are for setting aside Annexure A-9, Annexure A-13, Annexure A-15 and Annexure A-22 as they are issued without authority and against the rules. Second for setting aside Annexure A-16 and Annexure A-17 to the extent to which it delegates the statutory powers to be exercised by the 7 th respondent to respondents 8 to 11 and third for issuance of direction to the 3 rd and 4th respondents to draw the pay and allowances of the applicant for the period of 9 days from 18.2.2013 to 23.2.2013 and 1.5.2013 to 3.5.2013 and for one day on 11.7.2015.
4. Applicant has along with this O.A filed M.A.No.180/01356/2016 for condoning the delay of 1392 days in filing the O.A. The respondents in their reply to the M.A submits that Annexure A-9 was issued on 24.8.2013, Annexure A-16 on 7.9.2012 and Annexure A-17 on 10.9.2012. Respondents argue that applicant has not given sufficient reasons to condone the delay of 1392 days and 1389 days in challenging Annexure A-16 and Annexure A-17 orders respectively. The O.A, argues the respondents, is experimental in nature in view of the very nature of averments made by the applicant in the MA. No valid reasons whatsoever have been stated by the applicant for the inordinate delay in approaching this Tribunal for redressing his grievance if any. The applicant who had in fact chosen to acquiesce for all these periods, is not entitled for a discretionary relief argues respondent. In such .6.
circumstances, the Hon'ble Supreme Court has held in U.P.Jal Nigam & Another Vs. Jaswanth Singh & Another (2006) 11 SCC 464 that " when a person is not vigilant of his rights and acquiesces with the situation and the acquiescence prejudices or there is a change of position, such person's writ petition cannot be heard after the delay on the ground that same relief should be granted as was granted to the persons similarly situated, but who were vigilant of their rights." Respondents bring to our attention judgment of the Apex Court in the case of S.S.Rathore Vs. State of M.P (1989) 4 SCC 582 which has held that repeated unsuccessful representations cannot elongate limitation period. In the case of C.Jacob Vs. Director of Geology and Mining (2008) 10 SCC 115 the Apex Court held that reply to stale claims cannot furnish a fresh cause of action. Moreover, it is the settled position of law that no court of law can extend its helping hand to a sleeping party who suddenly wakes up and attempts an experiment, on a long closed matter. The Hon'ble Supreme Court in A.P.Steel Re-rolling Mill Ltd. Vs. State of Kerala and others & connected cases (2007) 2 SCC 725 has also held that the benefit of a judgment is not extended to a case automatically, if there is long delay in approaching the court, the same may disentitle the party to obtain discretionary relief. The same position was reiterated in S.S.Balu & Another Vs. State of Kerala & Others (2009) 2 SCC 479 also wherein it was held that "delay defeats equity. Relief can be denied on the ground of delay even though relief is granted to other similarly situated person who approached the court in time".
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5. The respondent in their reply to the O.A submits that the applicant was unauthorizedly absent for duty from 18.2.2013 to 23.2.2013 and from 1.5.2013 to 3.5.2013 (3 days). He had submitted an application for Commuted Leave on MC for 7 days with effect from 18.2.2013 only on 19.2.2013. For the period from 1.5.2013 to 3.5.2013, he had applied for EL without MC for 3 days on medical grounds. Since both period of leave were a part of the strike period, leave was not granted as was done to all similarly placed. But the applicant without getting leave sanctioned, remained absent from duty unauthorizedly during the above strike period. A show cause notice for dies non was issued for the period of unauthorized absence of the applicant vide Annexure A-5 by the ASP Ernakulam RMS who was the duly appointed administrative incharge of the MMS unit. Since no employee was granted leave during the strike period, the unauthorized absence of the official was treated as dies non vide Annexure A-9 by the ASP Ernakulam RMS.
6. Aggrieved by above, the official preferred a representation to the SRM, RMS 'EK' Division. Consequent on the transfer of the Administrative control of MMS Ernakulam to the Superintendent, RMS 'EK' Division, ASP RMS Ernakulam has been given the charge of MMS Unit. Aggrieved by this the applicant preferred an appeal to Director Postal Services (DPS) which was rejected by the DPS Central Region, Kochi, the Appellate Authority on 9.6.2015. The applicant has submitted a Revision Petition to the Chief Postmaster General, who also rejected the same. The dies non was issued after giving reasonable time to the applicant to submit his .8.
version and after considering his reply. Aggrieved by the same the official submitted an appeal which is under consideration of the Appellate Authority.
7. The post of Manager MMS Ernakulam fell vacant on 1.1.2012 submits respondent consequent on the superannuation of the regular incumbent. The administrative control of MMS Ernakulam was brought under SRM, RMS 'EK' Division vide Annexe A-16 dated 7.9.2012. Subsequently the administrative jurisdiction of MMS Ernakulam was transferred to Sr. Superintendent of P.Os Ernakulam Division with effect from 19.9.2016 vide Memo No. Mails/34-16/2002 dated 9.9.2016.
8. The contention of the applicant is that the officers posted to discharge current duties do not have the powers to discharge statutory functions of the post. The applicant in the O.A admits that authority competent to grant leave can also be a subordinate authority to whom the power to grant leave has been delegated. We also note that as per the first schedule of FR & SR Part III leave rules, the appointing authority can delegate the power to grant leave to any subordinate authority subject to any condition that may be specified in the delegation. In the instant case, consequent on the transfer of the administrative control of MMS Ernakulam to the Superintendent, RMS 'EK' Division, the administrative and operative charge of MMS unit was delegated to ASP, MMS Ernakulam (Annexure A17). Hence the authority to grant leave to the officials of MMS Ernakulam accrued to ASP, MMS Ernakulam.
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9. The 8th respondent has delegated the powers of immediate supervision of MMS Ernakulam to ASP, RMS 'EK' Division. The duty arrangements were made with the available staff uniformly and no case of harassment/denial of leave/coercion/threat were raised by the applicant before the administration at any time prior to this, argues the respondent. The belated averment of the applicant that they were coerced to work under threat of imposition of dies-non and disciplinary action, is denied by the respondents. The leave applied by the applicant for the period from 18.2.2013 to 23.2.2013 was not granted by the leave sanctioning authority to not only the applicant but to all employees, as a call for strike was called by the service unions during the said period, and all officials were treated similarly. The applicant without awaiting sanction of leave by the competent authority, remained absent from duty.
10. The applicant and all similarly placed were issued with show cause notice and was also given a reasonable opportunity to explain his case (Annexure A-5). As the reason stated by the applicant in his representation (Annexure A-8) was not found to be convincing, an order (Annexure A-9) was issued treating the above period as dies-non. The applicant has preferred an appeal against Annexure A-9 order vide Annexure A-11. The appeal filed by the applicant against the above orders was considered by the appellate authority and reviewing authority, and the decision of the leave sanctioning authority was upheld. No leave was granted during the strike period to any official in MMS Ernakulam. Though leave was not sanctioned by the competent authority, the applicant chose to remain absent .10.
from duty and hence the above period was ordered to be treated as dies-non (Annexure A-9) after giving a reasonable opportunity to explain his case by way of issuing show cause notice (Annexure A-5). The leave of drivers in MMS Ernakulam was granted by ASP MMS. As per the Rule 62 of Posts and Telegraphs Manual Volume III the leave sanctioning authority is competent to order a period of absence, not covered by leave, as dies-non. Accordingly Annexure A-5 show cause notice and Annexure A-9 memo was issued by the ASP, in the capacity of leave sanctioning authority, for which he was duly authorized.
11. As per the first schedule of FR & SR Part III Leave Rules, the appointing authority can delegate the power to grant leave to any subordinate authority subject to any condition that may be specified in the delegation. In the instant case, consequent on the transfer of the administrative control of MMS Ernakulam to the Superintendent, Railway Mail Service, Ernakulam Division, the charge of the transferred MMS unit has been given to ASP, MMS Ernakulam. The authority to grant leave to the officials of MMS Ernakulam, therefore, accrued to ASP, MMS Ernakulam. The Chief PMG Kerala, the Revisionary Authority after duly considering the revision petition, appeal, appellate order and connected records has concluded that the order issued by the Assistant Superintendent, MMS Ernakulam was in order on the following grounds :
(i) The petitioner was unauthorisedly absent for duty from 18.2.2013 to 23.2.2013 and from 1.5.2013 to 3.5.2013 without getting the leave sanctioned. As the above two spells of absence fell during the days of strike, dies-non issued by the ASP is in order.
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(ii) As per the first schedule of FR & SR Part III leave rules, the appointing authority can delegate the power to grant leave to any subordinate authority subject to any condition that may be specified in the delegation. In the instant case, consequent on the transfer of the administrative control of MMS Ernakulam to the Superintendent, RMS 'EK' Division, the charge of MMS unit has been given to 9th respondent (Annexure A-17). Before issuing dies-non orders, the 9 th respondent had issued show cause notice (Annexure A-5) to the applicant to explain the reasons if any for not treating the period of unauthorized absence as dies- non. The applicant submitted the representation to the notice (Annexure A-8) and only after considering the representation submitted by the applicant and after going into the merits of the case, the order imposing dies-non was issued.
(iii) The dies-non was therefore issued by the leave sanctioning authority ie. ASP after observing all the prescribed formalities.
(iv) The order of the ASP imposing dies-non was ratified by the appointing authority of the applicant ie. SRM 'EK' Division vide his letter No.STK/Genl. dated 4.9.2013. The reasons for ratification were also detailed in the said letter addressed to the applicant.
12. The rule cited by the applicant is applicable to the officiating arrangement for temporary vacancies. Whereas in the case of MMS, the administrative control of the unit itself, was transferred to another authority, for administrative reasons by the competent authority, as it was not a temporary vacancy. This was a case where no competent cadre officer was available to man the post of Manager MMS and the administrative control was transferred to another unit to enable the running and operation of the Mail Motor Service Unit.
13. The show cause notice we note was issued in connection with unauthorized absence from duty. Rule 62 of Posts & Telegraphs Manual Volume III stipulates reasons for dies non as :
"Absence of officials from duty without proper permission or when on duty in office, they have left the office without proper permission or while in the office, they refused to perform .12.
the duties assigned to them is subversive of discipline. In case of such absence from work, the leave sanctioning authority may order that the days on which work is not performed be treated as dies non, ie., they will neither count as service nor be construed as break in service. This will be without prejudice to any other action that the competent authorities might take against the persons resorting to such practices."
The applicant's case for dies non was covered by the above definition.
14. The Mail Motor Service is a specialized wing engaged in transmitting sorted and unsorted mail to and from the post offices in the Division. The nature of the job is specialized in so far as ensuring that mail vans are maintained and run timely and mail for delivery in delivery jurisdiction is reached to a post office by a specified time for the Postman to effect delivery the same day. The Manager, MMS is a specialized post with its own rules of recruitment, a separate cadre and the admitted fact is that a Manager could not be posted due to shortage of such an officer to man the post. A good Manager of a Postal Circle in above circumstances will not allow the collection, carriage and supply of mail to Post Offices and Railway Mail Service Offices to come to a standstill in the event of lack of an officer to manage the Mail Motor Service. Mail is the life line and reason d' etre for existence of respondent organization. Respondent would, in order to ensure smooth delivery of mail, post an officer who would best manage the Mail Motor Service operations, in the event of non-availability of an appropriate officer, so that the delivery of mail is not withheld to the public and users of Post Office service. Post Office comes under ESMA and the services cannot be suspended for whatever reasons and certainly not for the reason of a non-availability of a .13.
suitable officer of appropriate rank. Hence it appears such a step to delegate the powers of operating the MMS Unit and power to grant leave as per provisions of FR & SR Leave Rules to a subordinate authority was taken and is not an inappropriate step in the circumstances placed. As per the first schedule of FR & SR Part III Leave Rules, the appointing authority can delegate the power to grant leave to any subordinate authority subject to any condition that may be specified in the delegation. In the instant case, consequent on the transfer of the administrative control of MMS Ernakulam to the Superintendent, RMS 'EK' Division, the charge of MMS unit has been given to ASP, MMS Ernakulam vide Annexure A-17 and automatically the authority to grant leave to the officials of MMS Ernakulam accrued to the above 9th respondent.
15. Applicant argues that Manager, MMS is the appointing authority and hence the leave sanctioning authority. In the absence of the Manager, MMS we note that the respondent would not allow a situation to arise that the staff of MMS would not be allowed to avail leave. Hence an alternate arrangement with the approval of Head of Circle to transfer administrative control of MMS to another parallel unit head for administrative and operative reasons was made in the interest of operating the services of transmission of mail in view of the fact that the respondent department is covered by Essential Services Maintenance Act.
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16. In view of the argument of delegation of administrative powers, and provisions of FR & SR Part II Leave Rules, and on the ground of delay the O.A is devoid of merit and is liable to be dismissed. M.A.No.1356/2016 is also dismissed accordingly. Ordered accordingly. No order as to costs.
(Dated this the 28th day of July 2017)
(P.GOPINATH) (U.SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/01055/2016
1. Annexure A-1 - True copy of the representation dated 9.5.2013 of the applicant.
2. Annexure A-2 - True copy of Medical Certificate issued on 27.3.2013 by Dr.Vineesh Senan.
3. Annexure A-3 - True copy of Medical Certificate dated 13.4.2013 issued by Dr.Vineesh Senan.
4. Annexure A-4 - True copy of the representation dated 4.5.2013 of the applicant.
5. Annexure A-5 - True copy of the show cause memo bearing No.B/MMS/Strike dated 24.7.2013.
6. Annexure A-6 - True copy of the Schedule I to CCS (Leave) Rules, 1972.
7. Annexure A-7 - True copy of the relevant pages of Schedule I-A of the CCS (CCA) Rules 1965.
8. Annexure A-8 - True copy of the representation dated 29.7.2013 of the applicant.
9. Annexure A-9 - True copy of the order No.B/MS/Strike dated 24.8.2013 issued by the 11th respondent.
10. Annexure A-10 - True copy of the letter No.STK/Genl. dated 4.9.2013 of the 8th respondent.
11. Annexure A-11 - True copy of the appeal dated 13.9.2013 of the applicant.
12. Annexure A-12 - True copy of the petition dated 2.2.2015 submitted to the 4th respondent by the applicant.
13. Annexure A-13 - True copy of the appellate order No.ST/7-22/2013 dated 9.6.2015 of the 5th respondent.
14. Annexure A-14 - True copy of the revision petition dated 6.10.2015 of the applicant.
15. Annexure A-15 - True copy of the revision order No.VIG/RP/MRR/195/2015 dated 17.5.2016 of the 3rd respondent.
16. Annexure A-16 - True copy of the memo No.Mails/34-16/2002(Pt) dated 7.9.2012 of the 6th respondent.
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17. Annexure A-17 - True copy of the Memo No.C 59 dated 10.9.2012 issued by the 8th respondent.
18. Annexure A-18 - True copy of letter No.HR/RTI-R/14/2016 dated 21.6.2016 of the 8th respondent.
19. Annexure A-19 - True copy of the application dated 11.7.2015 for half days' casual leave.
20. Annexure A-20 - True copy of the show cause memo dated 13.7.2015 issued by 11th respondent.
21. Annexure A-21 - True copy of the explanation dated 20.7.2015 of the applicant.
22. Annexure A-22 - True copy of the order of dies-non issued vide memo No.MMS/Disc/2015 dated 23.2.2016 of the 11 th respondent.
23. Annexure A-23 - True copy of the appeal dated 14.3.2016 of the applicant.
24. Annexure A-24 - True copy of the letter No.MMS/Disc./2015 dated 18.4.2016 of the 11th respondent.
25. Annexure A-25 - True copy of the appeal dated 9.5.2016 of the applicant.
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