Central Administrative Tribunal - Patna
Kamla Ram vs Postal on 12 May, 2023
-1- OA/050/00026/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00026/2014
Reserved on: 27.03.2023
Pronounced on: 12.05.2023
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Kamla Ram, son of late Ganesh Ram resident of Village- Khairapatti (Samari),
P.S.-Samari District- Buxar.
.... Applicant.
By Advocate: - Mr. Kanhaiya Jee Tiwary
-Versus-
1. The Union of India through the Secretary Post & Telegraphs Department,
Government of India, New Delhi.
2. The Chief Postmaster General, Patna.
3. The Superintendent of Post Offices, Patna.
4. The Assistant Superintendent of Post Offices, Buxar Sub-Division, Buxar,
District- Buxar.
5. The Superintendent of Post Office, Bhojpur Division, Ara, Bihar.
6. The Post Master, Buxar, Head Post Office, Buxar.
7. The S.P.M., Semari, Buxar.
.... Respondents.
By Advocate: - Mr. Bindhyachal Rai
ORDER
Per S.K. Sinha, A.M:- Applicant has preferred the instant OA assailing the order dated 24.03.2003 (Annexure 4) passed by Assistant Superintendent of Post Offices, Buxar (Respondent No.4)
-2- OA/050/00026/2014 terminating his engagement /deployment as Contingent Paid Night Guard (T/S). The prayer made in the OA reads verbatim as under :-
"8 Relief Sought "For set aside of termination order dated 24.03.2003 passed in memo no. F- Mis/08.
Photo copy of order dated 24.03.2003 passed in memo no. F/Mis/03 is hereby annexed and marked as Annexure 4 to this petition.
8(a) That the applicant filed OA no. 215/12 in which the Hon'ble Bench has pleased to pass an order on 05.12.2012 with a liberty to a applicant for filing a fresh OA challenging the order which by the applicant has been terminated from his service.
A photo copy of order dt. 05.12.2012 passed in OA no. 215/12 is annexed herewith and marked as Annexure -5 to this petition.
8(b) That by the order dtd. 31.07.91 passed by the Assistant Superintendent of Post Offices, Buxar Sub-Division, Buxar the service of the applicant has been confirmed with a Division for payment of contingent fund.
A photo/typed copy of letter dt. 31.7.91 is annexed herewith and marked as Annexure-6 to this petition.
8(c) That when the marriage of the daughter of the applicant was performed he applied for taking advance from GPF which was granted Rs. 10,000/- and twice by the order dated 13.May 1999 and 10 May 2000.
A photo copy of Advance from GPF dated 13 May 1999 and 10 May 2000 is annexed herewith and marked as Annexure 7 and 8 to this petition."
2. This is the third round of litigation by applicant before this Tribunal, his earlier OAs No. 139 of 2011 and 215 of 2012 involving the issue of retirement benefit.
3. Applicant, initially engaged as casual labour in Postal department, was granted temporary status in 1991 and was working as Contingent Paid Temporary Status Night Guard at Simri Post Office under Buxar Sub-Division. In the evening of 31.12.2002
-3- OA/050/00026/2014 (between 1700 hrs and 1900 hrs) , applicant remained absent from the Post Office without permission and during this period a theft took place in the Post Office causing loss of Rs 3,51,226/- to the Postal department. Applicant registered an FIR at Simari PS in respect of the theft case. He was issued a show cause notice by the Postal authorities on 11.01.2003 as to why he should not be removed from the deployment of CP Night Guard TS. The applicant submitted his representation on 03.02.2003. Respondent No.4, holding the reply as not tenable, terminated applicant's engagement as CP Night Guard TS on 24.03.2003 in terms of Postal Directorate letter no. 45- 95/87 S. P.B.-1 dated 12.04.1991.
3.1 Subsequently, police filed Charge sheet in the theft case on 11.05.2003 against applicant. The trial court, however, acquitted applicant on 15.03.2010 on the ground of failure of prosecution to prove the charges beyond reasonable doubt. After acquittal, applicant preferred OA No. 139/2011 before this Tribunal praying for payment of retirement benefits. The Tribunal disposed of the OA on 08.03.2011 directing applicant to file representation before the concerned respondents for terminal benefits and to come to the Tribunal again for redressal of his grievances if his representation was rejected or no order was passed by the respondents within six months from the date of receipt of the order. The Superintendent of Post Offices, Bhojpur Division passed an order on 14.09.2011 in
-4- OA/050/00026/2014 compliance with the direction of the Tribunal. Applicant preferred OA No. 215 of 2012 before this Tribunal assailing the order of Superintendent of Post Offices and praying for direction to respondents for payment of retirement benefits and arrears of salary. During the hearing, the counsel for applicant prayed to withdraw the OA with liberty to file fresh OA raising the issue of his termination. The OA (215/2012) was allowed to be withdrawn on 5.12.2012 subject to condition that issue of limitation shall be considered if a fresh OA as prayed for was filed. Accordingly, applicant filed the instant OA and MA No. 050/0018/2014 for condonation of the delay stating that he could not file the OA earlier as being a rustic person he was unaware of the legal requirement. Applicant's main contention in the instant OA is that he was acquitted in the criminal case.
4. Contesting the OA, respondents filed written statement maintaining that the applicant was a contingent paid Night Guard (Temporary Status) and his service condition was governed in terms of Postal Directorate guidelines issued vide No. 45-95/87 S.P.S -3 dated 12.04.1991. The impugned termination order dated 24.03.2003 was passed in terms of these guidelines dated 12.04.1991. Applicant's unauthorized absence in the evening of 31.12.2002 when a theft took place at the Post Office led to separate inquiry by the Superintendent of Post Offices, Bhojpur Division, Ara
-5- OA/050/00026/2014 and Director of Postal Services (Hqrs) Patna and they submitted their inquiry report respectively on 07.01.2003 and 22.12.2004. Applicant was held as subsidiary offender in the inquiry. The Police filed Charge sheet against the applicant on 11.05.2003 in Simri PS FIR No. 152/2011. Applicant was issued show cause notice on 13.01.2003 by respondent department which he replied on 03.02.2003. After due consideration of his defence statement and related facts respondent no. 3 passed the order of termination on 24.03.2003. The applicant was acquitted in the criminal case by Hon'ble trial court on 15.03.2010 giving him benefit of doubt. After acquittal, applicant approached the Tribunal first in OA No. 139/2011 and subsequently in OA no. 215 of 2012 praying for retirement benefits. The instant OA has been filed after the Tribunal granted permission to withdraw OA No. 215 /2022 with liberty to file fresh OA raising the matter of termination.
5. We heard the rival parties and considered their submissions and materials on record.
6. Learned counsel for applicant while pressing the OA for final disposal did contend that applicant was a temporary Group 'D' employee and that the manner in which order of dis-engagement was passed is arbitrary and contrary to the procedure permissible under law. That applicant was given show cause notice for some reason and he was dis-engaged for some other reasons and
-6- OA/050/00026/2014 therefore the Tribunal had earlier disposed of the previous OA with direction to submit representation and the applicant had submitted representation which is still pending. Ld. counsel for applicant, however, expressed inability to produce the show cause notice dated 13.01.2003 and applicant's explanation dated 03.02.2003 which could substantiate his claim.
7. Learned counsel for respondents Mr. Bindhyachal Rai submitted that applicant's engagement as CP Night Guard TS was terminated after due consideration of his representation and in accordance with the guidelines of Postal Directorate. To a specific query relating the ground on which the applicant was terminated, he referred to the impugned order (Annexure-4) dated 14.03.2003 but expressed inability to produce copy of the show cause notice dated 13.01.2003 and applicant's explanation dated 03.02.2003 as the case was quite old. Ld. counsel submitted that as applicant was terminated in 2003 the instant OA was barred by limitation. L/C drew attention to the Tribunal's order of 05.12.2012 in OA 215 of 2012 that 'issue of limitation shall be considered on its own merit if any fresh OA assailing the termination order was filed. He also submitted that applicant's ground for condonation of delay (in the MA) of being a rustic person and ignorant of law was untenable as applicant had approached the Tribunal in separate OAs praying for retirement benefit etc. Ld. counsel prayed to dismiss the OA.
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8. Applicant's main contention is that he was a Temporary Group 'D' employee and the manner in which order of dis-engagement was passed was arbitrary and contrary to the procedure permissible under law. Applicant has also claimed that he was given show cause for some reason and he was dis-engaged for some other reasons. We first advert to the contention that applicant's termination was contrary to the procedure permissible under law. The impugned termination order dated 24.03.2003 (Annexure 4) is reproduced below for the sake of brevity and ready reference.
" Office of Assistant Superintendent of Post Offices , Buxar Sub Division Buxar Memo No. F-Misc/03 at Buxar the 24.3.03 The work of Sri Kamla Ram, CP, Night Guard (T/S) Simari PO was found not at all satisfactory rendering his further deployment as CP, Night Guard Simari PO undesirable. Therefore, he was given an opportunity vide this office Memo of even No. dtd. 13.01.03 to explain the reason as to why he should not be removed from deployment as CP Night Guard (T/s) Simari PO. He was further reminded vide this office letter of even no. dated 30.01.03.
He submitted his representation dtd. 03.2.03 which was received in this office on 08.02.03 in which he stated that he has been discharging his duty satisfactorily since last 30 years and there has been no complaint against him. But on 31.12.02 he remained absent form his duty from 17.00 hrs to 19.00 hrs as Simari PO closes at 17.00 hrs. During the period of his absence from duty from 17.00 hrs to 19.00 hrs on 31.12.02 a theft occurred at Simari PO putting the department to a loss of Rs. 3,51,226/- (Three lacs fifty one thousand two hundred twenty six) only. He informed the Police Station Simari in the night on 31.12.02/01.01.03 and FIR was lodged by him at Simari PS which was registered at Simari PS Case No. 152/02 U/s 431, 379 I.P.C. In the said FIR he himself admitted that he was absent from his duty from 17.00 hrs to 19.00 hrs on 31.12.02. During the period of occurrence on 31.12.02 he deserted the office from 17.00 hrs to 19.00 hrs during which theft took place. He also admitted in his W/s dtd. 01.01.03 that he left the office since closing of Simari PO and returned back to office at 19.00 hrs. The arguments put forth by the said Kamla Ram CP Night Guard (T/S) Simari PO in his representation dtd. 03.02.03 is not tenable and his further deployment as CP Night Guard Simari PO is not at all desirable.
-8- OA/050/00026/2014
Order
In view of the facts mentioned above and as per provisions contained in the Department of Posts Letter No. 45-95/87 S.P.S-1 dtd. 12.04.91, I Ram Chandra Prasad, Asstt. Supdt of Post Offices, Buxar Sub Division Buxar hereby ordered that the engagement/deployment of said Sri Kamla Ram C.P. Night Guard (T/S) Simari PO is dispensed with/terminated with immediate effect.
( R.C. Prasad ) Asstt. Supdt of Post Offices Buxar-Sub Division, Buxar To, Shri Kamla Ram , C P Night Guard Simri PO ( Buxar)."
Bare reading of the above order reveals that applicant was issued show cause notice because his work was found not satisfactory rendering his further deployment as C P Night Guard at Simri PO undesirable. The order mentions applicant's absence from duty in the evening of 31.12.2002 and the incident of theft at the PO during the same period. The termination order was passed in terms of the Postal Directorate guidelines issued vide No. 45-95/87 S.P.S -3 dated 12.04.1991.
9. Relevant provision of the Postal Directorate guidelines at para 10 and 11 reads as under:-
" 10. Temporary status does not debar dispensing with the services of a casual labourer after following the due procedure.
11. If a labourer with temporary status commits a misconduct and the same is proved in an enquiry after giving him reasonable opportunity, his services will be dispensed with."
The Postal Directorate guidelines do not elaborate the 'due procedure' at clause 10 above, however clause 11 mentions of an enquiry and reasonable opportunity to the TS staff before
-9- OA/050/00026/2014 terminating his services. Respondents have stated in WS that two separate inquiries were held by the Superintendent of Post Offices, Bhojpur Division, Ara and Director of Postal Services (Hqrs), Patna after the incidence of theft. Superintendent of Post Offices, Bhojpur Division submitted his report on 07.01.2003. Though respondents have not annexed copy of the inquiry report but applicant has also not challenged this averment that inquiry was held by Superintendent of Post Offices.
10. The impugned order dated 24.03.2003 has been passed after inquiry and due opportunity to the applicant to present his defence. The order speaks of the events in the evening of 31.12.2002 and admission of the applicant that he was absent from duty when the theft took place.
11. Applicant has argued that there was variance in the reasons for show cause notice and the grounds for termination. We felt a need to examine the show cause notice and the applicant's reply thereon with a view to comparing them with the reason stated in the impugned order (Annexure 4). Both, counsel for applicant and counsel for respondents expressed inability to produce the show cause notice dated 13.01.2003 or the applicant's explanation dated 03.02.2003 to the department because of non-traceability of these documents after 20 years now. In absence of these documents we find ourselves unable to advert to the issue raised by applicant.
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12. Respondents have raised the issue of limitation. In fact this Tribunal, while disposing of OA No 215 /2012 made a specific mention that issue of limitation will be examined if any fresh OA on termination is filed.
13. After acquittal in the criminal case, applicant preferred OA No. 139/2011 praying for retirement benefits and this Tribunal disposed of the OA on 08.03.2011 as per following order.
"This original application has been filed by Kamla Ram for payment of retirement benefits. The learned counsel for the applicant submits that while the applicant was working as Guard in Sub-Post Office Semari, Buxar, an FIR was instituted bearing Semari PS Case No. 152/2022 dated 31.12.2002 under Section 461,379 and 120[B] of the IPC against him and thereafter he was terminated from service by the Department. He submits that the applicant has been acquitted from service by the Department. He submits that the applicant has been acquitted in the criminal case when he crossed the age of service. So he submits that the applicant is entitled for pensionary benefits. The ld. Counsel for the applicant in reply to a query of the Tribunal submitted that after acquittal, the applicant approached the authority concerned for redressal of grievance but no action was taken. He has not given the details as to when the applicant approached to the Department.
The applicant is, therefore, directed to file a representation before the concerned respondents for getting his terminal benefits and if his representation is rejected or no order is passed within a period of six months from the date of receipt of this order, then he may come before this Tribunal for redressal of his grievance.
The OA is disposed of at the admission stage itself."
14. As directed by the Tribunal Superintendent of Post Offices, Bhojpur Division passed an order on 14.09.2011 in compliance with the direction of the Tribunal. The applicant preferred another OA No.
-11- OA/050/00026/2014 215/2012 assailing the order of Superintendent of Post Offices. The Tribunal disposed of the OA on 05.12.2012 as per following order:-
"Heard the learned counsel for both sides.
This OA has been filed by the applicant challenging the order dated 14.09.2011 passed by the Superintendent of Post Offices, Bhojpur Division, Ara in compliance with the order of the Tribunal dated 08.03.2011 passed in OA 139/2011 The prayer in the instant OA is to direct the respondents for payment of retiral benefits as well as arrears of salary.
MA No. 290/2012 has also been filed by the applicant to amend the relief in the OA to the extent that direction be given to the respondents to treat the applicant as a permanent service holder and entitled for all the pensionary benefits as well as salary. On perusal of the order passed in OA 139/2011 it appears that in the said OA also the applicant prayed for payment of terminal benefits on being acquitted in a criminal case. The Tribunal directed the applicant to represent before the department.
From the written statement filed by the respondents and also the annexures, it appears that the service of the applicant was terminated in the year 2003. Moreover, the applicant was only a temporary status labour. The applicant has not challenged the termination. There is nothing in the pleadings to show that he made a representation to that effect to the respondents.
The l/c for the respondents also states that the termination order was passed long back and that the question of limitation may arise now. He further submits that the payment of retiral dues is a separate issue and the applicant is mixing up several issues in a single OA. After some discussions, the l/c for the applicant prays to withdraw the OA with liberty to file fresh OA regarding the matter of his termination. Prayer is allowed subject to condition that issue of limitation shall also be considered on its own merit if any such fresh OA is filed. The MA and OA stands disposed of accordingly."
15. Perusal of the two orders reveals that applicant approached the Tribunal in both the OAs for grant of retirement benefits, he did not challenge the termination order nor made any representation to that effect to the respondents.
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16. We are inclined to agree with the Counsel for respondents that applicant's ground for condonation of delay that he was a rustic person and unaware of law was untenable as he had filed two separate OAs before the Tribunal for payment of retirement benefits after acquittal in the criminal case. The grounds for condonation of delay in MA are thus not convincing.
17. Considering the entirety of facts discussed above, we are inclined to hold that the order of applicant's termination was passed in accordance with the provisions of Postal Directorate guidelines issued on 12.04.1991. There is no illegality or violation of any rule in the impugned order. The applicant was terminated in 2003 and he filed the instant OA before this Tribunal in 2013. The applicant's ground for delay as mentioned in MA No. 18/2014 is not convincing.
18. In view of the facts mentioned above, we are of considered view that OA deserves to be dismissed on the grounds of limitation and being devoid of merit. Ordered accordingly. Pending MAs, if any, also stand disposed of. No order as to cost.
19. Before parting, we make it clear that this order will not be an impediment in applicant approaching the appropriate authority in respect of his claim for terminal benefits.
[ Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.