Central Administrative Tribunal - Gauhati
Suriya Begum vs Union Of India (Uoi) And Ors. on 22 September, 2004
Equivalent citations: 2005(2)SLJ395(CAT)
ORDER
R.K. Batta, J. (Vice Chairman)
1. The applicant was appointed to the post of Safaiwala on part time basis vide order dated 16.10.1991 and she took charge of the same on 22.10.1991. The applicant continued to discharge her duties till her services were terminated vide impugned order dated 27.1.2004 (Annexure-4) which is the subject matter of challenge in this application. According to the applicant, termination of her services is illegal inasmuch as her services could not be terminated on the ground mentioned therein without affording reasonable opportunity of hearing. According to her, instead of regularising her services under the departmental scheme, the respondents have chosen to terminate her services by casting stigma. The applicant, therefore, prays for quashing of the impugned orders and reinstatement with full back wages and also direction to regularise her under the scheme.
2. The respondents' stand is that the applicant was engaged for sweeping for three hours in a day. The husband of the applicant was placed on put-off duty (suspension) with effect from 9.7.2003 and disciplinary proceedings have been initiated against him under Rule 10 of the GDS (Conduct and Employment) Rules, 2001 for misappropriation of the amount of Rs. 1,02,650/- which was collected by him from the depositors. According to the respondents, the applicant had supplied some official documents without the knowledge of the Postal Staff working there to her husband which were produced by her husband during enquiry by preparing some false money receipts. The respondents further contend that the Sub Post Master, Bhella, denied his signature appearing on those receipts produced by the husband of the applicant and in case the receipts were prepared by the husband of the applicant during the duty period, the same being official documents should have been kept in office. According to the respondents, the presence of the applicant in the office where departmental proceedings are being conducted against her husband would be undesirable for safety and security of Government documents as well as for wider public interest. As such her services were terminated to safeguard the Government records. According to the respondents, the applicant was working only for three hours in a day and was not entitled to regularisation. It is also the case of the respondents that the applicant has not exhausted remedies available in accordance with law nor she has filed any representation against the termination order and as such the application should be dismissed.
3. Mr. A. Deb Roy, learned Sr. C.G.S.C. has submitted before us that the applicant has not exhausted remedies available to her and in terms of Section 20 of the Administrative Tribunals Act, 1985 the application in question should not be entertained and the applicant should be directed to exhaust the remedies available to her. In this respect, Mr. U.K. Nair, learned Counsel for the applicant, has submitted before us that the applicant had, in fact, visited the office of the respondents with a prayer to consider her case for modifying the said impugned order and in the facts and circumstances of this case the applicant had no other alternative but to approach this Tribunal. The applicant has not given any details as to when she visited the office and whom she had already represented.
4. The learned Counsel for the applicant has further submitted before us that there are no rules governing casual labourers in respect of departmental proceedings and following the general principles, the authority who can look into the dismissal would be higher authority above the Appointing Authority which in the case under consideration would be Divisional Superintendent of Post Offices inasmuch as the Appointing Authority of the applicant was Sub-divisional Inspector of Posts who is subordinate to Divisional Superintendent of Post Offices. According to him, it would be a futile exercise to direct the applicant to make a representation to the Divisional Superintendent of Post Offices since the affidavit in this case has been filed by the Superintendent of Post Offices of the Division himself. He, therefore, contends that the Tribunal should entertain this application under Section 20 in view of the above facts of this case. In this respect learned Sr. C.G.S.C. urged that the affidavit was filed by the Superintendent of Post Offices since he was a party respondent, but he can very well look into the grievances of the applicant afresh in spite of the affidavit filed in this proceedings and that the Tribunal should not entertain this application.
5. Section 20 of the Administrative Tribunals Act, 1985 lays down that the Tribunal should not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. Thus, the normal rule is that the Tribunal shall not entertain an application unless the applicant has availed of all remedies available to him/her under the relevant service rules, but in exceptional circumstances or where the facts and circumstances justify, this Tribunal has discretion to entertain applications even where the applicant has not availed of the remedies available under the relevant service rules. We have to bear in mind and there is no dispute on this issue that there are no service rules governing departmental proceedings in so far as casual labourers are concerned. We may point out that normally, the question of departmental proceedings may not arise against casual labourers in view of the terms of their appointment which can be terminated without any notice and in the instant case also the appointment order of the applicant shows that her services can be terminated without any notice. Insofar as termination plain and simplicitor is concerned the position may be different, but when the termination order is stigmatic in nature, it is necessary that a person should not be condemned unheard. In orders which are stigmatic in nature, it is necesary that principles of natural justice and bare minimum show cause notice be issued so as to have the stand of the employee before termination of his services. Depending upon the facts of each case departmental enquiry may not be required in the case of a casual labourer in view of the very nature of the appointment which is terminable without any notice, but at least a show cause notice is required to be issued. In the case under consideration no show cause notice was issued and the services were terminated by the Appointing Authority, namely Sub-divisional Inspector of Posts. Though there are no departmental rules on the subject, as per general principles the remedy or representation could be availed against the order of the dismissal by the Appointing Authority to the next authority in hierarchy which is Divisional Superintendent of Post Offices. It is no doubt true that the applicant herself joined the Superintendent of Post Offices as party respondent, but the Superintendent of Post Offices could have taken preliminary objection that a representation could be filed before him which could be looked into by him, but in this case the Superintendent of Post Offices has opposed the application and has prayed for dismissal of the same which has been verified by him. In this set of facts it will be too much to send the applicant to the Superintendent of Post Offices for making a representation inasmuch as he has already taken a view while filing the affidavit which has been duly verified by him. Therefore, we are inclined to entertain this application and the objection raised by the learned Sr. C.G.S.G on this score is rejected.
6. We have already stated above that at least a show cause notice should have been issued to the applicant before passing the stigmatic order of termination which reads as under:
"You are hereby Terminated from services of part-time safaiwala, Bhella S.O. with immediate effect in order to maintain secrecy in the process of enquiry proposed to hold by undersigned against your husband, Md. Fazlul Haque GDS-Packerman, Bhella S.O. (now on put off duty) under Rule-10 of GDS (Conduct and Employment) Rules, 2001."
In the affidavit-in-reply at internal page 3 of the said affidavit the respondents have stated that Smt. Suriya Begum, while working as Part-time Safaiwalla at Bhella Post Office got ample scope to help her husband (who was on put off duty) by supplying some official documents without the knowledge of the postal staff working there. She supplied some official papers to her husband, which were produced by her husband during inquiry by preparing some false money receipts. It is further stated that her husband prepared such bogus receipts on day to day basis showing transfer of money to the Sub-Post Master, Bhella, although the Sub-post Master denied his signature appearing on those receipts. The respondents have further mentioned that the said Post Master of Bhella Post Office working at that time was also involved in a fraud case of the same nature for which he was also suspended and disciplinary action is continuing against him. Thus, it is clear that the respondents have prejudged the issue that official papers were supplied by the applicant to her husband and the signatures of the Sub Post Master have been forged thereon. The Sub Post Master who is involved in the fraud case of same nature and against whom disciplinary proceedings are pending in bound to deny his signature to save his skin. Therefore, the department by prejudging the matter, which is yet to be decided in the departmental proceedings, has caused grave prejudice which appears to have prompted the department to pass the stigmatic dismissal order referred to above without issuing any show cause notice. Thus, bare minimum principles of natural justice have not been followed in this case while issuing the stigmatic termination order. The stigmatic termination order will come in the way of the applicant in seeking any further employment and would totally mar (sic) her chances for future employment. The termination order is, therefore, liable to be set aside and the applicant is entitled to be reinstated on the post of Part Time Safaiwalla.
7. Learned Sr. C.G.S.C. stated that even if the applicant is to be reinstated she cannot be paid back wages since she did not work. The services of the applicant were terminated by a stigmatic termination order, as already stated, without following bare minimum principles of natural justice and she was deprived from working for no fault of hers. The Apex Court in Ram Ashrey Singh and Anr. v. Ram Bux Singh and Ors.,, has laid down that, it is a well-settled position in law that on reinstatement there is no automatic entitlement to full back wages and each case has to be examined in the light of the facts and circumstances therein. The Apex Court has quoted with approval the observation in Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors., 1979(2) SCC 80, which reads as under:
"In the very nature of things there cannot be a straight-jacket formula for awarding relief of back-wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full Back-wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular...."
8. In Union of India v. Madhusudan Prasad, , the services of a Safai Karamchari were terminated without serving any show cause notice nor any enquiry preceded his dismissal. The Apex Court has laid down that, where the dismissal order was passed in contravention of the principles of natural justice, the employee is entitled to back wages. In that case it was found that the respondent therein was removed from service without any enquiry and he was not even given a show-cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principles of natural justice and therefore, it was held that the respondent therein was entitled to back wages.
9. In Burn Standard Company Ltd. and Anr. v. Tarun Kumar Chakraborty and Ors., 2003 SCC (L&S) 1015, the Apex Court while dealing with the principle of Work, No Pay' had laid down that when the respondent therein was prevented from joint the service, the principle of 'No Work, No Pay' cannot be applied and he would be entrire to back wage for the period he was not permitted to join, which in the said case was almost nine years with effect from 12.10.1988 till 15.5.1997.
10. In the case before us, the termination order is stigmatic in nature which was passed without following bare minimum principles of natural justice and the applicant was a deprived of her job and work. In this set of facts, we are of the opinion that she will be entitled to full back wages as part time casual labourer.
11. The next question which is required to be considered is whether the applicant should be ordered to be regularised inasmuch as the applicant seeks a direction from this Court to that effect. Learned Counsel for the applicant urged before us that the applicant is entitled to regularisation in terms of Casual Labourers (Grant of Temporary Status and Regularisation) Scheme. He has drawn our attention to Swamy's Compilation of Establishment and Administration for Central Government Offices in respect of clarification relating to Part-time and Full-time casual labourers which is found at page 247 of the said book in its ninth edition. In this it has been clarified that casual labourers who are engaged for a period of not less than 8 hours a day should be described as full time casual labourers. Those casual labourers who are engaged for a period of less than 8 hours a day should be described as part time casual labourers and for the purpose of recruitment to Group 'D' posts, substitutes should be considered only when casual labourers are not available and the priority referred to therein should be observed. In case of casual labourers (full time or part time), for the purpose of computation of eligible service, half of the service rendered as a part-time casual labourer should be taken into account. That is, if a part-time casual labourer has served for 480 days in a period of 2 years he will be treated, for purposes of recruitment, to have completed one year of service as full time casual labourer. In view of the said clarification the case of the applicant shall have to be examined by the department as to whether she fulfills the requirement for grant of temporary status/regularisation and for that purpose the applicant is permitted to file representation giving all details with the Appointing Authority who shall consider the same in accordance with the rules and regulations applicable in the behalf and pass appropriate orders. The applicant shall file representation within four week from today and once the representation is filed the Appropriate Authority shall pass order in accordance with the rules and regulations applicable in that behalf within a period of three months of the receipt of the representation.
12. The application is disposed of in the aforesaid terms. The orders dated 27.1.20(sic) and 28.1.2004 are hereby set aside and the respondents are ordered to reinstate the application as Part-time Safaiwala with full back wages from the date of termination till she is reinstate as per this order. The representation filed by the applicant in terms of this order be dispose of by the Appropriate Authority within three months of receipt of the same in accordanted with the rules and regulations applicable in that behalf.
In the facts and circumstances of the case we shall leave the parties to bear their cost.