Central Administrative Tribunal - Patna
Ajay Kumar vs Postal on 9 December, 2019
-1- OA/050/00837/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00837/2016
With
MA/050/00196/2017
Reserved on : 03.12.2019
Pronounced on: 09.12.2019
CORAM
HON'BLE MR. JAYESH V. BHAIRAVIA, JUDICIAL MEMBER
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
Ajay Kumar, S/o Sri Lal Das, Mohalla- Sri Nagar, Pashu Mela Road, PO & PS-
Masaurhi, District- Patna.
.... Applicant.
By Advocate: - Mr. J.K. Karn with Mr. H.K. Karn
-Versus-
1. The Union of India through the D.G. Cum Secretary, Department of
Posts, Dak Bhawan, New Delhi.
2. The Additional DG, APS, Quartermaster General's Branch, Army
Headquarters, West Block- III, R.K. Puram, New Delhi- 110066.
3. The Chief Postmaster General, Bihar Circle, Patna.
4. The Director of Postal Services (HQ), O/o Chief Postmaster General,
Bihar Circle, Patna.
5. The Sr. Superintendent of Post Offices, Patna Division, Patna.
.... Respondents.
By Advocate(s):- Mr. H.P. Singh, Sr. SC
ORDER
Per Dinesh Sharma, A.M:- In the instant OA, the applicant, who is an employee of Department of Posts and who was working on deputation to Army Postal Service (APS) since August, 1998, has prayed for the release of the applicant from APS in pursuant to the letters dated 18.03.2016 of the Sr. Superintendent of Post Offices, Patna Division
-2- OA/050/00837/2016 (Annexure A/9) and Discharge Order No. 10/2016 dated 21.03.2016 for which information to him was provided vide letter dated 22.10.2016 (Annexure A/13). The applicant has also prayed for applying CCA(CCS) Rules, 1965 instead of Army Act if any disciplinary action was to be taken against him, and for an interim relief of grant of salary withheld since October, 2016 to enable his survival along with his dependents.
2. A Written statement has been filed by the respondents in which they have stated that the applicant, while working in the APS was found to have misappropriated Rs. 5 lakhs (for about two years). When this case came to the notice in September, 2015 the matter was enquired into. Thereafter, the concerned departmental authorities directed for taking suitable disciplinary proceeding against the applicant as per the Army Act. However, since the applicant was already ordered to be discharged from Army Postal Service w.e.f. 13.09.2016 the applicant was requested to give consent for cancellation of this discharge so that the disciplinary proceedings could be completed under the Army Act. Since the applicant refused to give consent to such cancellation of discharge, Section-123 of the Army Act was invoked which permits the respondents to take such disciplinary action against a person who has been discharged from Army Service. Since the matter relates to an act committed by the applicant while being in Army Postal Service, which comes within the provisions of Army Act, this Tribunal does not have jurisdiction to entertain this OA. It is also mentioned that despite good
-3- OA/050/00837/2016 number of opportunity and advisory given to him for postponement/deferment of discharge, the applicant did not give his consent for it and therefore Section 123 of the Army Act has been invoked. No salary or allowances could be paid after that date of discharge.
3. The applicant has filed a rejoinder reiterating his earlier case and again questioned the application of Army Act since the applicant is an employee of the Department of Posts. He also quoted a decision by this Tribunal in OA/05000795/2015 decided on 21.05.2016 and annexed a copy of that decision at Annexure A/17. Another Miscellaneous Application (MA 197/2016) was filed by the applicant praying for direction to the respondents to make payment of salary since October, 2016. Replies to the rejoinder and MA were filed by the respondents re- stating what they have stated earlier in their written statement.
4. We have gone through the pleadings and heard the arguments of learned counsels of both the parties. The basic issue before us is whether the applicant comes under the purview of the Army Act and therefore it is beyond the jurisdiction of this Tribunal to adjudicate this matter. It is only after deciding on this issue that the merits of this case can be gone into. The learned counsel for the respondents brought to our notice the provisions of the Army Act [ Section 2 (1) (a)] which is reproduced below:-
-4- OA/050/00837/2016 " 2(1) The following persons shall be subject to this Act wherever they may be, namely:-
(a) Officers, junior commissioned officers and warrant officers of the regular Army;"
The respondents have also cited a decision by the Armed Forces Tribunal, Regional Bench, Lucknow in OA No. 146/2017 wherein the terms and conditions of service for P&T Non-Gazetted personnel on deputation to Army Postal Service has been quoted. A relevant extracts of these is quoted below:-
"TERMS AND CONDITIONS OF SERVICE FOR P AN D T NON- GAZETTED PERSONNEL ON DEPUTATION TO ARMY POSTAL SERVICE
1. Volunteers for field service from P and T Department will be enrolled in the Army Postal Service Corps under Army Act on short term engagement.
2. .............
3. .............
4. .............
5. Discipline: They will be governed by the Army Act and other orders applicable to Army Personnel during their service in the Army Postal Service."
5. The learned counsel for the applicant has cited the decision of this Tribunal quoted above (OA/050/00795/2015) where cognizance of a matter was taken by this Tribunal after the person who was dismissed from Army Service and repatriated to the Civil Division. It is not disputed that the applicant, while in the APS was serving as a volunteer Warrant Officer (last column of Appendix attached with Annexure A/10). It will be clear from these that this Tribunal will have
-5- OA/050/00837/2016 jurisdiction over the matters relating to a Civilian employee of the Postal Department only after they have been repatriated to the Civil Division. We have also found that in the case quoted by the learned counsel for the applicant (OA/050/00795/2015), the matter relating to the disciplinary action against the applicant therein was under adjudication by the Armed Forces Tribunal, Principal Bench, New Delhi. This Tribunal took cognizance of the issues arising after the repatriation and not the issue relating to the disciplinary proceeding while he was in deputation in the APS. Thus, after examining the legal position and the decisions quoted above, we have no doubt about the fact that a matter regarding disciplinary action, for an alleged act or omission committed while being in the Army Postal Service, will not fall within the jurisdiction of this Tribunal. The argument of the applicant is mainly dependent on the fact of his discharge which is not denied by the respondents. They have invoked Section 123 which squarely applies in cases where a person has been discharged and has ceased to be the subject of the Army Act. The said provision of the Army Act is reproduced below: -
"123. Liability of offender who ceases to be subject to Act.- (1) Where an offence under this Act had been committed by any person while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in military custody, and tried and punished for such offence as if he continued to be so subject.
-6- OA/050/00837/2016
(2) No such person shall be tried for an offence, unless his
trial commences within six months after he had ceased to be subject to this Act:
Provided that nothing contained in this sub-section shall apply to the trial of any such person for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37 or shall affect the jurisdiction of a criminal court to try any offence triable by such court s well as by a court-martial.
(3) When a person subject to this Act is sentenced by a court-
martial to (imprisonment for life) or imprisonment, this Act shall apply to him during the term of his sentence, though he is cashiered or dismissed from the regular Army, has otherwise ceased to be subject to this Act, and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act.
(4) When a person subject to this Act is sentenced by a court- martial to death, this Act shall apply to him till the sentence is carried out."
6. As is clear from the language of paragraph 1 of Section 123 a person shall be deemed to be subject to the Army Act even if he has ceased to be so subject in relation to delinquencies committed during the Army Service. From the above, it is clear that the applicant cannot escape his liability for disciplinary action under the Army Act just because he was ordered to be discharged. It goes without saying that after disciplinary action is over and he is repatriated he will come under the purview of the parent department who will be bound to accept him on such repatriation, as decided by this Tribunal in OA/050/00795/2015. In the aforementioned circumstances, though we have sympathy for the
-7- OA/050/00837/2016 applicant for the prolongation of the disciplinary proceeding against him, we cannot grant him any relief for want of jurisdiction. Needless to say, the applicant is free to approach appropriate legal forum (in this case the Armed Forces Tribunal) to get his grievance redressed. The OA and MA are dismissed accordingly. No order as to costs.
[ Dinesh Sharma ] [Jayesh V. Bhairavia] Administrative Member Judicial Member Srk.