Central Administrative Tribunal - Patna
Kumari Anamika Ray vs Postal on 20 October, 2021
1
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/01081/2018
01081/2018
Date of Order:20th October, 2021
CORAM
HON'BLE MR M.C. VERMA,
VERMA MEMBER [J]
HON'BLE MR. S.K. SINHA, MEMBER [A]
Kumari Anamika Ray, W/o Late Pankaj Kumar Ray, resident of
Village & P.O. - Belaon, Via - Done, District - Siwan.
.......... Applicant.
By Advocate ::- Shri Jayant Kr. Karn
-Versus
Versus-
1. The Union of India through the Secretary Cum D.G., Department
of Posts, Dak Bhawan, New Delhi - 110001.
2. The Chief Postmaster General, Bihar Circle, Patna - 800001.
3. The Post Master General, Northern Region, Muzaffarpur
Muzaffarpur- 842002.
4. The Superintendent of Post Offices, Siwan Division, Siwan Siwan-
-
841226.
5. The Inspector of Post Offices, Cent
Central Sub Division, Siwan- -
841226.
......... Respondents.
By Advocate ::- Shri H.P. Singh.
O R D E R (O R A L)
M.C. Verma, M[J
1. Being aggrieved by order dated 20.12.2018, 20.12.2018 issued by Inspector of Post Offi Offices, ces, Central Sub-Division Sub Siwan, exercising power under Rule 8(2) and the Note below Rule 8(2) of GDSD Rules--2011 (Annexure -A/1), whereby and where-under services of the applicant treating him as GDSMC has been terminated, the present O.A. has been preferred preferred.
2. In nutshell, the case of the applicant, applicant as has been set out in the O.A. is that after bein beingg found successful in selection she,, on 19.07.2016 was given offer of appointment for the post of GDSMC at Dighwalia Branch Post Office in account with Chainpur Sub Office in 2 Siwan Postal Div Division, she submitted her willingness and join the post GDSMC at Dighwalia Branch Post Office on 31.03.2017.. That she rendered unblemished service for about 20 months and suddenly on 20.12.2018 she was served impugned order, whereby invoking Rule 8(2) of GDS (C&E) Rules, 2011 but without assigning any reason, reason, her service has been terminated, allowing her TRCA of one month.. That copy of the termination order with reference of letter dated 22.06.2018 has also been sent to Superintendent of Post Offices, Muzaffarpur which is indicative of facts that termination order was issued on behest of some higher authority It has also been contended that the termination order is not only arbitrarily illegal but is also in violation of GDS (C&E) Rules.
3. Opposing ing the OA, respondents did file the written statement and mutatis mutandis case of the respondents, as has been taken in the written statement, is that one Smt. Swati Kumari alleging malpractice committed in engagement process submitted a complaint against nst the then appointing authority authority,, enquiry was conducted and it transpires that the engagement process was initiated by the then appointing authority without permis permission sion of the competent authority, call all letters for verification of documents were issued without out keeping any proof and no candidate was addressed through registered post. That m mode ode of dispatch of Police Verification Report/Verification of educational certificate/Medical and engagement memo were not available in original appointment file. That grosss irregularities have been committed by the appointing authority. That there is itself in the 3 Date of Birth and her educational testimonials. That the appointing authority also violated the instructions contained in letter dated 01.08.2016. It has also bee been n contended in the written statement that the termination order is as per rules. The applicant was allowed TRCA for one month as per rules. It is also contended that Divisional Head is empowered to carry out review of engagement at any stage in later and spirit pirit of Rule 8 of GDS (C&E) Rule, 2011.
4. It is worth noting herein that on 31.12.2018 notice to respondents upon O.A. as well upon interim relief was issued and vide its order dated 02.01.2019 ad-interim interim relief, directing the respondents to restrain from implementing the impugned order dated 20.12.2018 was granted granted. Needless to say that contempt petition No.66/2019 has also been filed by the applicant applicant, for alleged violation of interim order dated 02.01.2019 and sa said id contempt petition is still pending adjudication.
5. After fter issuance of notice respondents has filed the written statement statement, contesting the OA.. Mutatis mutandis contention of the respondents is that one Smt. Swati Kumari alleging ing malpractice committed ommitted in engagement process instituted a complaint against the then appointing authority authority. That enquiry was conducted and it transpired that the then appointing authority initiated engagement process without permission sion of the competent authority, call all letters for verification were issued without keeping any proof and no candidate was addressed through registered post. Mode of dispatch of Police V Verification erification Report/Verification of educational 4 certificate/Medical and engagement memo etc. were not available le in original appointment file and the appointing authority has also violated the instructions contained in letter dated 01.08.2016. That hat gross iirregularities by the appointing authority were there and variance qua date of birth of applicant in her educational testimonials was also noticed. That hat Divisional Head is empowered to carry out review of engagement at any stage stage, that hat the the termination order is as per Rules and Rule 8 of GDS (C&E) Rule, 2011 in later and spirit has been followed and applicant was allowed owed TRCA for one month as per Rules.
6. After admission matter is for final hearing. Heard. Shri Jayant Kr. Karn Advocate Advocate, appearing for the applicant did submit that the appointment/engagement has been made by the competent authority authority, no reason for termination has been assigned in the termination order and termination order reveals that it may relates to letter dated 22.06.2018 of Superintendent of Posts but neither that letter of Superintendent of Posts was ever supplied to the applicant nor in writ written statement its text has been mentioned.
7. Mr. Karan vehemently argued that Rule 4 of the GDS Conduct Rules Rules,, which relates to irregularity in engagement and empowers the superior authority to make such order as it thinks fit but after giving an opportunity of being heard, heard,. Referring Rule 4,, learned counsel argued that no opportunity was given to the applicant before termination and hence, the termination order is illegal. He also submits that in identical matter namely, in case of Asho Ashok k Kumar 5 Singh vs. Union of India, this Tribunal has set aside the termination order. He urged to set aside the termination order.
8. Learned counsel Shri H.P. Singh, who is appearing for respondents made three fold submissions. His first contention is that termination ermination order is in absolute consonance of Rule 8 of GDS (C&E) Rules and explained that proviso attached to said Rule empowers the authority to terminate the service of Gramin Dak Sevak who has not completed three years of service at any time giving one months notice or granting one month TRCA. That applicant has not completed three years of service and therefore her services could legally be terminated Rule 8 of GDS (C&E) Rules 2011.. That all formalities necessary for action under Rule 8 have been fulfi fulfilled lled in the instant case. He also argued that the appointment/engagement was void ab ab-initio as appointing authority made engagement in absolute ute violation of the procedure. He referred the written statement where alleged infirmity/violation has been menti mentioned oned and added that when the appointment itself is void ab ab-initio, initio, no notice was required. He submits that Rule 4 has to be read in consonance with Rule 8 and therefore, the termination order is justified
9. We have given thoughtful consideration to the submission ission advanced. Before adverting to merits of the OA it is just and necessary to have glance of Rule 4 & Rule 8 of GDS (C&E) Rules 2011 2011.
"Rule 4. Recruiting Authority 6 (1) The Recruiting Authority in respect of each category of Sevak shall be as shown in the Schedule annexed to these rules.
(2) If any doubt arises as to who is the appropriate Authority in any case, the matter shall be referred to the Government, whose decision thereon shall be final (3) Notwithstanding anything contained in these rules, es, any authority superior to the Recruiting Authority as shown in the Schedule, may, at any time, either on its own motion or otherwise call for the records relating to the engagement of Gramin Dak Sevaks made by the Recruiting Authority, and if such Recruiting Recr Authority appears:-
(a) to have exercised a jurisdiction not vested in it by any law or rules time being in force; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, such superior authority may, after giving an opportunity of being heard, make such order as it thinks fit.
Rule 8. Termination of Engagement, Engagement (1) The engagement of a Sevak who has not already ready rendered more than three years' continuous service from the date of his engagement shall be liable to be terminated at any time by a notice in writing given either by the Sevak to the Recruiting Authority, or by the Recruiting Authority to the Sevak; (2) The period of such notice shall be one o month;
Provided that the service of any such Sevak may be terminated forthwith and on such termination, the Sevak shall be entitled to claim a sum equivalent to the amount of Basic Time Related Continuity Allowance plus Dearness Allowance as admissible for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service, or, as the case may be, for the period by which such notice falls short of one month NOTE. : Where the intended effect of such termination t has to be immediate, it should be mentioned that one month'ss Time Related Continuity Allowance plus Dearness Allowance as admissible is being remitted to the Sevak in lieu of notice of one month through money order."
10. It is True that in ordinary case termination of engagement under Rule 8 of GDS (C&E) Rules 2011 of a Sevak who 7 has not already rendered more than three years' continuous service from the date of his engagement is permissible at any time by a notice of one month. Note attached to Rule 8 stipulates that where here the intended effect of such termination has to be immediate, it needs to be mentioned that one month's Time Related Continuity Allowance plus Dearness Allowance as admissible is being remitted to the Se Sevak vak in lieu of notice of one month through money order. Ingredients of Rule 8 of GDS (C&E) Rules 2011 thus can be said to be fulfilled but the question evolved is whether without following & fulfilling requirement of Ingredients of Rule 4 of GDS (C&E) Rules Rules 2011, termination order impugned, can be hold legally sustainable.
11. It has emerged that termination of applicant is not for the reason of her incompetency or for unsatisfactory performance in discharge of duty or because of her conduct of not becoming a public servant but it is for the reason of alleged irregularities in engagement process.
cess. It is inherent in Rule 4 that any authority superior to the Recruiting Authority may at any time, either on its own motion or otherwise call for the records relating to the engagement of Gramin Dak Sevaks made by the Recruiting Authority, and if it find by such superior authority that Recruiting Authority has exercised jurisdiction not vested in him or has failed to exercise jurisdiction so vested or have acted in the exercise of its jurisdiction illegally or with material irregularity, such superior authority may, after giving an opportunity of being heard heard,, make such order as it thinks fit. When the root cause of termination is irregularities in engagement process, the 8 termination of services cannot be dehor of procedure prescri prescribed bed in this Rule 44. Admittedly no opportunity,, before passing of order of the termination rmination of services was given to the applicant; hence, the termination order is illegal.
12. In result impugned order dated 20.12.2018, 20.12.2018 whereby services of the applicant has been terminated is hereby quashed and is set aside, applicant is directed to be rrestored estored back in service, with all consequential benefits but not with full back wages. Back wages is allowed @ 50% of Time Related Continuity Allowance plus Dearness Allowance as is admissible in relevant period.
13. However, if the respondents are of the view that doing glaring irregularities in engagement process and it is a case of back door entry, this order of restored back of applicant in service shall not be an impede, they after joining of applicant may grant an opportunity unity to the applicant in terms of Rule 4(3) of GDS (Conduct & Engagement) Rules, 2011 and thereafter pass a reasoned and speaking order in regard to his engagement/termination engagement/termination.
14. In view of legal and factual scenario, discussed above, the O.A. O.A.to to the extent noted above stands allowed and is disposed of accordingly. No costs.
[Sunil Kumar Sinha] [M.C. Verma]
Member [A] Member [J]
sks/-