Karnataka High Court
The Union Of India, vs Sri.R.P. Udupi, on 5 December, 2017
Bench: S.Sujatha, H.B.Prabhakara Sastry
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF DECEMBER, 2017
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE Dr. JUSTICE H. B. PRABHAKARA SASTRY
WRIT PETITION No.100770 OF 2017 (S-CAT)
BETWEEN:
1 THE UNION OF INDIA,
REP. BY ITS SECRETARY,
DEPARTMENT OF POSTS,
DAK BHAWAN,
PARLIAMENT STREET,
NEW DELHI - 110001
2 THE POSTMASTER GENERAL,
NORTH KARNATAKA REGION,
DHARWAD - 580001
3 THE ASSISTANT DIRECTOR (SA)
THE POSTMASTER GENERAL,
N.K.REGION, DHARWAD - 01
4 THE SUPERINTENDENT OF POST OFFICE
BAGALKOTE DIVISION,
BAGALKOTE - 587101
... PETITIONERS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADV.)
2
AND:
SRI R.P.UDUPI,
S/O. PADMANABHA BHAT,
AGED 56 YEARS,
OCC: WORKING AS GDS/DA (GDSBPM),
JAKANUR BO A/W. BADAMI SO - 587201,
R/AT H.NO.324, JAKANUR, BADAMI TALUK,
BAGALKOTE DISTRICT
...RESPONDENT
(BY SRI. DINESH M. KULKARNI, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
PRAYING TO SET ASIDE THE ORDER PASSED BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, BENGALURU IN
O.A.NO.170/01289/2015 DATED 22.09.2016, COPY AS PER
ANNEXURE-A AND DISMISS THE O.A. NO.170/01289/2015 BY
ALLOWING THE PRESENT WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, Dr.H.B.PRABHAKARA SASTRY J., MADE
THE FOLLOWING:
ORDER
Being aggrieved by the order dated 22.09.2016 passed in Original Application bearing OA No.170/01289/2015, by the Central Administrative Tribunal at Bengaluru (henceforth for brevity referred to as 'the Tribunal' ), the present petitioners, who were respondents No.1 to 4 before the Tribunal have preferred this writ petition.
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2. The summary of the case of the petitioners is that, the respondent was appointed as GDS MD/MC (Grameen Dak Sevak Mail Deliverer/Mail Carrier) in the Jakanur BO a/w Badami SO in Bagalkote Division with effect from 02.03.1980. The Jakanur BO has two posts of GDS (Grameen Dak Sevak) i.e. BPM (Branch Post Master) and GDS MD/MC. The GDS BPM of Jakanur BO Sri S.G.Angadi passed away on 12.01.2004. Examining and noticing the work load in the office and in the light of the guidelines issued by the postal directorate, a combination of duties were entrusted to the present respondent with effect from 12.01.2004 and the combined duty allowance was sanctioned. The TRCA (Time Related Continuity Allowance) of `4,895/- per month was drawn in the slab of `4,220-50-4,245 applicable to the GDS MD/MC was fixed in the applicable first slab of BPM i.e. `2,745-50-4245. The TRCA of the respondent after appointment as BPM was erroneously drawn in the TRCA scale of `4,220-75- 6470 instead of TRCA scale `2,745-50-4245, which has 4 resulted in excess payment, which was ordered for recovery. Challenging the said order of recovery, the respondent filed Original Application bearing OA No.170/01289/2015 before the Tribunal, seeking quashing of order of recovery and for refund of a sum of `20,177/- to him which was said to have been recovered from him. The Tribunal by its order dated 22.09.2016 allowed the Original Application and by quashing all the impugned orders challenged before it, was further ordered that the applicant before it (respondent herein) was eligible for the combined pay which he was receiving prior to the impugned orders. It is the said order, the petitioners have challenged in this writ petition.
3. After service of notice, the respondent is being represented by his learned counsel. Heard both side. Perused the materials placed before this Court.
4. It is the contention of the writ petitioners in their writ petition, as well the argument of the learned 5 counsel for the writ petitioners that, the Tribunal ought to have seen that the allowances payable to the respective personnel of the postal department was governed by the instructions of the Department of Posts and as such, any excess pay is bound to be recovered. The Tribunal also ought to have seen that an employee would be entitled to such pay which is payable to the post in which he discharges his duties and even if an amount is paid in excess, the same is liable to be recovered. It was further contended that the employment of a person to a post and combination of duties are in the domain of the employer and if an employer directs for combination of duties and the same is performed by the employee, he would be entitled for combined duty allowances, but not to any excess amount. Learned counsel further submitted that, the Tribunal proceeded on an assumption that the respondent was working more than 8 hours a day and passed an erroneous order.
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On the other hand, the learned counsel for the respondent in his argument submitted that, the representation submitted by the respondent to his department clearly go to show that he had to travel 22 kms. per day due to the combination of the dual post and that, in addition to his work, he is attracting 3 hours additional work load of the regular BPM, as such, his work load is not less than 8 hours. Considering these aspects, the Tribunal has rightly quashed the impugned order and held that the present respondent was eligible for the combined pay which he was receiving prior to the impugned order, as such, the petition deserves to be dismissed.
5. It is not in dispute that, the present respondent joined the duty in the postal department as GDS MD/MC (Grameen Dak Sevak Mail Deliverer/Mail Carrier) on 02.03.1980 and that due to the death of Sri S.G.Angadi, BPM of Jakanur Branch Office on 7 12.01.2004, the present respondent was entrusted a combined duty as GDS BPM. It is not the case of the respondent that, no such combination is permissible under their departmental rules and regulations, but it is his contention that re-fixation of his salary on the basis of alleged work load and working hours is in violation of DGP instructions No.17-115/2001 - GDS dated 21.10.2002 item 4(i). It is also his contention that his working hours is not 5 hours or less as contended by the employer, but it is more than 8 hours. Thus, the respondent through his representation at Annexure-A6 dated 11.04.2011 addressed to the petitioner No.4 has not challenged the legality and validity of any of the provisions in his departmental rules or regulations and also the alleged DGP instructions dated 21.10.2002, but he has only contended that the calculation of alleged work load by his employer was improper and inaccurate.
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On the other hand, the petitioners as respondents in the Tribunal had relied upon the calculation of work load statement prepared by them as per Annexure-R4 and contended that the total work load of the present respondent in his dual capacity as GDS BPM were put together and it was not exceeding 5 hours a day. Thus, it was expected by the Tribunal to ascertain the nature of work entrusted to the present respondent (petitioner before the Tribunal) and his alleged work load in the light of rival contentions and after going through the documents produced by both the side, including the calculation of the work load statement said to have been prepared by the employer/present petitioners and other relevant statistics placed before it.
6. It is only thereafter the Tribunal ought to have arrived at a conclusion regarding the applicability of the pay scale and correctness of the salary already paid. Without undertaking any such exercise, the Tribunal 9 below in its very brief order started viewing the case before it with a prejudiced eyes that, the postal department being a public service entity has become a profit center and has assumed a new way to look at any situation through commercial eyes.
7. Further, without bothering to assess the value of the contention put forth by both side and more particularly the inspection charts prepared by the respondents before it/postal department, giving the details of the work load and the total number of hours spent for working and other related aspects, the Tribunal straight away jumped in to a conclusion that the applicant might be working more than 8 hours. In arriving to that conclusion also, the Tribunal itself was not certain that the materials placed before it has proven that the petitioner before it was working more than 8 hours, but it only guessed that he 'might' be working for more than 8 hours. When that being its finding without any proper 10 basis or detail analyses of the materials placed before it, consequently, it proceeded to a wrong conclusion that the impugned order was erroneous. In that process, it did not even notice that the legality and enforceability of the postal department's rules and regulations applicable to the case on hand before it were not challenged.
8. Thus, we are of the opinion that, since the Tribunal has not applied its mind properly and has not weighed the value of the materials placed before it while arriving at a conclusion, the order under challenge deserves to be set-aside and the matter requires to be remanded to the Tribunal for its fresh disposal in the light of the observation made above and in accordance with law.
9. Accordingly, the writ petition is allowed and the order passed by the Central Administrative Tribunal, Bengaluru Bench in Original Application No.170/01289/2015 dated 22.09.2016 which is at 11 Annexure-A annexed to this writ petition is set-aside and the matter is remanded to the said Tribunal for its fresh disposal, in accordance with law and in the light of the observations made above.
10. To enable expeditious disposal of the matter before the Tribunal, both the parties herein are directed to appear before the Tribunal on 17.01.2018 without anticipating any fresh notice or summons from the Tribunal in that regard.
Sd/-
JUDGE Sd/-
JUDGE *Svh/-