Patna High Court
Brijesh Kumar Shukla vs The Union Of India & Ors on 4 October, 2018
Equivalent citations: AIRONLINE 2018 PAT 1829
Author: Jyoti Saran
Bench: Jyoti Saran, Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8080 of 2018
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Brijesh Kumar Shukla the Dismissed Sub Postmaster, Natwar Post Office,
Rohtas Division, Sasaram (Bihar). the Permanent Home Address- S/o Late
Hari Nandan Prasad Shukla Village-Dhaniamau, PO-Sarai Harkhu, Distt.-
Jaunpur (U.P.).At Present-163/51A, Rajapur, Allahabad (U.P.)
... ... Petitioner/s
Versus
1. The Union of India through the Secretary, Department of Posts, New Delhi.
2. The Central Administrative Tribunal, Patna Bench, Patna through its
Registrar.
3. The Central Information Commission, New Delhi through its Registrar.
4. The Secretary, Department of Posts, New Delhi.
5. The Chief Postmaster General, Bihar Circle, Patna.
6. The Director Postal Services HQ O/O Chief PMG, Bihar Circle, Patna.
7. The Chief Postmaster General, Jharkhand Circle, Ranchi.
8. The Supdt. Posts, Rohtas Division, Sasaram.
9. Sri Kamleshwar Prasad the then Chief PMG, Bihar Circle, Patna C/o the
Secretary, Department of Posts, New Delhi.
10. Sri M. Abdali the then Director Postal Services HQ Patna C/O Chief PMG.
Bihar Circle, Patna.
11. Sri Shambhu the then Vigilance Officer C/O Chief PMG, Bihar Circle, Patna.
12. Sri Jitendra Singh, the then Supdt. Posts, Rohtas Division, Sasaram C/o Chief
PMG, Bihar Circle, Patna.
13. Sri M.L. Sharma the then Information Commissioner, Central Information
Commission, New Delhi C/O the Chief Information Commissioner, Central
Information Commission, New Delhi.
14. Sri Anant Narain Nanda the then Director Postal Services, Ranchi now the
Secretary, Department of Posts, New Delhi.
15. Sri Bahadur Singh the then Director Postal Services, Ranchi C/o the
Secretary, Department of Posts, New Delhi.
16. Sri Raj Kumar Singh the then Supdt. Posts, Rohtas Division, Sasaram C/o the
Chief PMG, Bihar Circle, Patna.
17. Sri Lal Dhari Ram the then Supdt. Posts, Rohtas Division, Sasaram C/o the
Chief PMG, Bihar Circle, Patna.
18. Sri Harendra Prasad Singh the then Addl. Standing Counsel CAT, now the Sr.
Standing Counsel, Central Administrative Tribunal, Patna Bench, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Brijesh Kumar Shukla ( In Person )
For the Respondent/s : Mr. Anjani Kumar Sharan, Asst. Soc. Gen.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
and
HONOURABLE JUSTICE SMT. NILU AGRAWAL
Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018
2/16
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE JYOTI SARAN)
Date : 04-10-2018
The petitioner appears in person while the respondents
are represented by Mr. Anjani Kumar Sharan learned Assistant
Solicitor General.
It is feeling aggrieved by the order of dismissal dated
13.01.1998at Annexure- 102, the appellate order dated 06.07.2002 at Annexure-131 and the revisional order dated 08.10.2007 at Annexure-145 that the petitioner who appears in person has filed this writ petition under Article 226 and 227 of the Constitution of India to question those orders inter alia on grounds that it was passed behind his back and in contravention to the Constitutional safeguard present under Article 311 of the Constitution of India and in the process he has chosen to question a number of orders passed by the respondent authorities in the Department of Posts beginning from the transfer order dated 29.05.1995 including the orders passed by the Central Administrative Tribunal, Patna Bench Patna.
Paragraph 1(A) of the writ petition lists 11 reliefs through which the petitioner prays for quashing of all the orders connected with his transfer as well as with the disciplinary proceedings which has led to his dismissal from service. Sub para Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 3/16 (B) of para 1 seeks is a number of directions from this Court to the authorities in the Department of Posts.
The petitioner was serving the Department of Post as a Sub Postmaster posted at Natwar in the District of Rohtas at the time of his dismissal from service. It is taking note of the status of the petitioner as a dismissed Central Government employee and the nature of multiple reliefs prayed in the writ petition that the office raising objections on the maintainability of the writ petition posted the matter for consideration. The matter was considered on 07.08.2018 and when Mr. Anjani Kumar Sharan, learned Assistant Solicitor General raised objections on maintainability of the writ petition as according to him, the proper forum for the petitioner to question the orders impugned in the writ petition, would be the Central Administrative Tribunal, Patna Bench Patna, under the provisions of the Administrative Tribunals Act, 1958 (hereinafter referred to as 'the Act') and the rules framed thereunder. According to Mr. Sharan, the petitioner without exhausting the forum available under 'the Act' has straight away rushed to this Court to file the present writ petition which is not maintainable in view of the legal position settled by the Courts on the issue.
The petitioner contesting such objection submitted that since the orders impugned in the writ petition including the order Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 4/16 of dismissal are being questioned on grounds that it is a nullity and would require such declaration from this Court under Articles 226 and 227 of the Constitution of India, there is no bar in approaching this Court directly. It is taking note of the sanguineness with which the petitioner appearing in person was espousing his cause by filing a writ petition which runs in thousands of pages that we decided to give a hearing to the petitioner to enable him to satisfy the Court on the maintainability of the writ petition.
Mr. Shukla, the petitioner initiating his arguments has submitted that having been appointed as Postal Clerk on 14.07.1981 vide Annexure-1, he was holding the post of Sub Postmaster, Natwar in the District of Rohtas when a transfer order was passed on 29.05.1995 at Annexure-13. He submits that on grounds of illness of his wife and on the apprehension of abortion, he prayed for stay of the transfer order before the Postmaster General on 31.05.1995 at Annexures- 14 and 15 to the writ petition. It is submitted that since no positive order was passed on his representation for stay of the transfer that he moved the Central Administrative Tribunal in O.A. No. 497 of 1995 which was disposed of on 04.09.1995 with the direction to the Postmaster General, South Bihar, Ranchi to get the applicant's representation dated 31.05.1995 disposed through the Superintendent of Post Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 5/16 Office, Rohtas within a period of two weeks of receipt of the order and until then if the petitioner had not been relieved from the post, status quo be maintained. A copy of the order is enclosed at Annexure-38.
According to the petitioner, no order was passed on his representations rather a second order was passed on 24.07.1995 by the Superintendent of Post Offices directing him to join at the new place of posting, a copy of which is enclosed as Annexure 66. The petitioner challenged both the orders in O.A.No. 615 of 1996 and while the said application was pending before the Central Administrative Tribunal, Patna Bench, Patna that an ex parte dismissal order was passed on 13.01.1998. It is submitted that since the original application bearing O.A. No. 615 of 1996 was yet pending before the Tribunal that he filed a Miscellaneous Application for amendment of the prayer in the pending application. It is submitted that the Tribunal vide order passed on 26.02.2002 disposed of the O.A. No.615 of 1996 with direction to the petitioner to exhaust the statutory remedy of appeal available to him against the dismissal order before the appellate authority who was accordingly directed to decide the appeal/representation expeditiously. A copy of the order of the Tribunal is enclosed at Annexure-125 to the writ petition.
Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 6/16 In reference to the memo of appeal at Annexure 127, he submits that the appeal was filed on 09.04.2002 wherein he raised all issues in support of his plea that the order of dismissal was ex parte, passed without following the statutory procedure and was also without jurisdiction as the Superintendent of Post Offices had no jurisdiction to pass the order of dismissal but the appeal was rejected on 06.07.2002 without dealing with the issues and even the revision was dismissed by the Chief Postmaster General on 08.10.2007.
According to the petitioner, the disciplinary proceeding was initiated on alleged charge of not complying with the transfer order. He submits that the charge itself was illegal because he was under protection of the order of the Tribunal passed in O.A.No. 497 of 1995 which directed for maintenance of 'status quo' in case the petitioner was not relieved. According to the petitioner, the order was passed by the Tribunal on 04.09.1995 and since the petitioner was on medical leave that after obtaining medical certificate he went to give his joining on 10.10.1995 which was not accepted inter alia on grounds that he had already been relieved on 06.06.1995 itself vide Annexure 25. According to the petitioner this relieving order is ante dated. Since Mr. Sharan learned ASG had made reference to the charge report at Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 7/16 Annexure 23 dated 06.06.1995 to support the stand that the petitioner was already relieved on date of passing of the order by the Tribunal that the said charge report was explained by the petitioner by submitting that on the dates on which the petitioner went on leave, he handed over the charge temporarily to some body and it is in this direction that the charge report at Annexure-23 was given on 06.06.1995 which certainly is not in pursuance of the transfer order dated 29.05.1995 because he had already filed a representation on 31.05.1995 which was pending disposal and had also moved the Tribunal in this regard.
According to the petitioner, these documents of relieving have been generated by the respondents simply to defeat the cause raised and the challenge led by the petitioner which is evident from several orders passed by the Senior Superintendent of Post Office including the one sanctioning the GPF of the petitioner on 22.06.1995, where he has referred to the petitioner as Sub Postmaster, Natwar. The order sanctioning G.P.F. is present at Annexure 27. The petitioner has also referred to the letter of the Superintendent of Post Office dated 06.07.1995 enclosed at Annexure which addresses the petitioner as Sub Postmaster, Natwar 'on leave'. The petitioner has next referred to the salary Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 8/16 statement for the month of July dated 29.07.1995 at Annexure-33 which refers to him as Sub Postmaster, Natwar.
According to the petitioner, the documents referred to above confirms that he was never relieved from the post of Sub Postmaster, Natwar as recognized by the respondents themselves and since his representation against his transfer remained pending before the Postmaster General for disposal, he enjoyed the interim protection granted by the Tribunal in OA No. 497 of 1995 and thus no disciplinary proceeding at all could have been initiated against him for alleged failure to comply with the transfer order. He submits that the Superintendent of Post Office rejected his representation on 27.09.1995 at Annexure 43 and which nowhere mentions that he stood relived from the post of SPM, Natwar. It is submitted that it is thereafter that the Postmaster General disposed of the representation on 28.11.1995 in the light of the order passed by the Superintendent of post Office vide order present at Annexure-54.
While questioning the disciplinary proceeding initiated for alleged failure of the petitioner in complying with the transfer order, he submitted that there was no justification for the respondents to hold ex parte disciplinary proceeding against the petitioner in the circumstances existing without even taking proper Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 9/16 steps for service of charge memo. In the same vein he submits that the dismissal order has been passed by an authority who is not the appointing authority. According to the petitioner, the Superintendent of Post Offices is not the appointing authority of the petitioner to pass an order of dismissal rather this jurisdiction vests in the Chief Postmaster General. Learned counsel in support of his submission has relied upon two judgments of the Supreme Court reported in (1976) 1 SCC 594 (O.P.Gupta versus Union of India) and (1980) 2 SCC 205 (Dharam Dev Mehta versus Union of India).
It is further the submission of the petitioner that since the charge sheet was never served on the petitioner though a copy thereof was given, it would not suffice the statutory requirements which mandates a 'service of charge memo' and not a 'service of a copy of charge memo'. He submits that there are documents on record which would confirm that charge memo was never served on the petitioner and in which circumstances, all orders passed, become a nullity.
It is stated that since he was pursuing his cause under the Right to Information Act, 2005 for gathering the documents which would demonstrate that the entire proceeding leading to dismissal is illegal, de hors the statutory requirements and void ab initio as it Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 10/16 is in contravention with the provisions of Article 311 (2) of the Constitution of India. According to the petitioner the time consumed in collecting the documents, is sufficient explanation for the delayed challenge.
He submits that where the entire proceedings leading to the dismissal itself is void ab initio and the order is passed by an authority not competent to do so, he may not be relegated to the forum of the alternative remedy available under the provisions of the Administrative Tribunals Act rather in view of the unimpeachable documents on record, the issue be decided by this Court.
The arguments of Mr. Shukla has been contested by Mr. Sharan learned counsel appearing for the respondents on merits as well as on maintainability. In reference to Annexures-23 and 25 of the proceedings he submits that where the petitioner stood relieved from his post on 06.06.1995 itself, he did not enjoy the protection of the order of maintenance of the 'status quo' passed by the Tribunal on 04.09.1995 because the 'status quo' position was to be maintained only in case the petitioner was not relieved from his post and Annexures-23 and 25 are sufficient evidence of relieving of the petitioner from his post. It is argued that since the petitioner did not comply with the transfer order that disciplinary Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 11/16 proceedings have been initiated and the order passed by the disciplinary authorities confirms that it was held with due observance of the statutory provisions.
On the issue of maintainability Mr. Sharan has relied upon two judgments of the Supreme Court to submit that the cause raised before this Court is not maintainable until the petitioner exhausts his remedy under 'the Act' and since he has failed to do so, the writ petition is not fit to be entertained. He submits that even the plea that the orders under challenge are a nullity, have been passed in violation of principles of natural justice and behind the back of the petitioner does not absolve the petitioner of the duty to raise these issues before the Tribunal in a duly constituted application and not directly before the High Court. In reference to paragraph 93 and 99 of the judgment of the Constitution Bench reported in (1997) 3 SCC 261 (L. Chandra Kumar versus Union of India and Ors.), Mr. Sharan submits that the petitioner cannot approach the High Court directly without exhausting the remedy available under the Administrative Tribunals Act. To the same effect, Mr. Sharan has referred to the Supreme Court judgment reported in (2010) 4 SCC 554 (Rajeev Kumar & Anr. versus Hemraj Singh Chauhan & Ors.) paragraphs 13, 15 and 16. Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 12/16 We have heard learned counsel for the parties and we have perused the records and though rather exhaustive arguments have been advanced by the petitioner appearing in person which has persuaded us to record his submissions which primarily center around issues of ex parte proceeding, patent illegality, lack of jurisdiction, statutory violation and violation of natural justice. In any matter, other than those covered under the Administrative Tribunal Act perhaps we might have been persuaded to record our opinion on the merits of the contest on the well settled principle that availability of the alternative remedy would be no bar for exercise of jurisdiction under Article 226/227 of the Constitution where the action complained is being questioned on grounds of lack of jurisdiction, on issues of violation of principles of natural justice and on apparent violation of the statutory procedure. The case in hand is an exception to this general rule because the petitioner was a Central Government employee and since after the enforcement of 'the Act' more particularly Section 14 thereof, which is self eloquent, the issues raised by the petitioner needs to be adjudicated upon by the Central Administrative Tribunal at the first instance and the petitioner cannot be permitted to rush to the High Court on any account whatsoever.
Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 13/16 The legal position settled by the Constitution Bench in the case of L.Chandra Kumar (supra), on the issue, finds discussed at paragraph 93 of the Judgment where it is held that the Tribunal will continue to act as the Court of first instance in respect areas of law for which they have been constituted and it will not be open for the litigants to directly rush to the High Court.
This legal position that the Tribunal would continue to act like Court of first instance in respect of areas of law for which they have been constituted and that it would not be open for the litigants to directly approach the High Court is again reiterated at paragraph 99 of the judgment.
The judgment relied upon by Mr. Sharan, rendered in the case of Rajeev Kumar (supra) is in fact in somewhat similar situation, as existing in the case in hand where an impleadment application was filed before the Delhi High Court by some Central Government Employees seeking permission to intervene and for allowing them to make their submission at the time of hearing of the writ petition. The Delhi High Court allowed them to intervene and file affidavit. However, not being satisfied by the judgment of the High Court that these intervenors approached the Supreme Court in the case in question where an issue of locus to intervene in a pending writ petition before the High Court came up for Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 14/16 consideration since undisputedly these intervenors were not parties before the Central Administrative Tribunal. The Supreme Court taking note of the Constitution Bench Judgment in the Case of L. Chandra Kumar (supra) has held as follows:
"13. Sub-sections (4), (5) and (6) of Section 6 provide that all the Members of the Central Administrative Tribunal, the State Administrative Tribunals and the Joint Administrative Tribunals shall be appointed by the President; in the case of the State Administrative Tribunals and the Joint Administrative Tribunals, the President is required to consult the Governor(s) concerned. Sub-section (7) stipulates that the Chief Justice of India is also to be consulted in the appointment of the Chairman, Vice- Chairman and Members of all the Tribunals under the Act.
14. Section 8 prescribes the terms of office of the personnel of the Tribunal as being for a duration of five years from the date of entering into office; there is also provision for reappointment for another term of five years. The maximum age limit permissible for the Chairman and the Vice-Chairman is 65 years and for that of any other Member is 62 years. Section 10 stipulates that the salaries, terms and conditions of all Members of the Tribunal are to be determined by the Central Government; such terms are, however, not to be varied to the disadvantage of any Member after his appointment.
15. Chapter III ("Jurisdiction, powers and authority of Tribunals") consists of Sections 14 to 18. Sections 14, 15 and 16 deal with the jurisdiction, powers and authority of the Central Administrative Tribunal, the State Administrative Tribunals and the Joint Administrative Tribunals respectively. These provisions make it clear that except for the jurisdiction of this Court, the Tribunals under the Act will possess the jurisdiction and powers of every other Court in the country in respect of all service-related matters. Section 17 provides that the Tribunals under the Act will have the same powers in respect of contempt as are enjoyed by the High Courts.
Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 15/16
16. Chapter IV ("Procedure") comprises Sections 19 to 27. Section 21 specifies strict limitation periods and does not vest the Tribunals under the Act with the power to condone delay. "
In view of the legal position so well settled, we uphold the office objection as well as the objection raised by Mr. Sharan learned ASG, on the maintainability of the writ petition. In view of the position settled by the Supreme Court, the petitioner cannot be permitted to bypass the statutory forum of the Central Administrative Tribunal constituted under 'the Act' and would have to first raise his grievances at the first instance before the Tribunal.
We have taken note of the issues raised by the petitioner to question the action of the respondents and orders passed by them on the issue of transfer and the disciplinary proceeding but since we have upheld the objection raised by the office on the maintainability of the writ petition we refrain from expressing any opinion on the merits of the contest and leave it open for the petitioner to raise it before the proper forum i.e the Central Administrative Tribunal in a duly constituted proceeding and considering that the issue dates back more than two decades, it would be advisable for the petitioner for taking expeditious steps in this connection, should he be sanguine in his cause.
Patna High Court CWJC No.8080 of 2018 dt. 04-10-2018 16/16 Since we have upheld the objection on maintainability of the writ petition and accordingly directed the petitioner to approach the proper forum and since this writ proceedings running into thousands of pages, is being pursued by the petitioner in person, we deem it proper to direct the office to return the copies of the writ proceedings so filed, to the petitioner for its filing before the proper forum, while retaining photocopies of the relevant extract thereof, for the purpose of records and any future use.
With the observations above and the liberty so granted to the petitioner, we dispose of this writ petition.
(Jyoti Saran, J) ( Nilu Agrawal, J) Bibhash/-
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