Central Administrative Tribunal - Ernakulam
K.P. Babu vs Union Of India on 26 February, 2016
Author: P. Gopinath
Bench: P. Gopinath
o;? CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 808 of 2013
Friday, this the 26th day of February, 2016
CORAM:
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
K.P. Babu, aged 51, S/o. K.V. Krishnan,
Post Master, Cherukunnu Mukhya Dakh Ghar,
Residing at Pallikoval, Karivellur-670 521. .... Applicant
(By Advocate : Mrs. R. Jagada Bai)
Versus
1. Union of India, represented by the Secretary
to Department of Posts, New Delhi - 110 001.
2. The Director of Postal Services, Office of the
Postmaster General, Northern Region, Kerala Circle,
Kozhikode - 673 011.
3. The Superintendent of Post Offices, Kannur Division,
Kannur - 670 001.
4. Inspector of Post Offices, Payyanur Sub Division,
Payyanur - 670 307.
5. Assistant Superintendent of Post Offices,
Taliparamba Sub Division, Taliparamba. . . . . Respondents
(By Advocate : Mr. Thomas Mathew Nellimoottil )
This application having been finally heard on 2.2.2016, the Tribunal
on 26.2.2016 delivered the following:
ORDER
Hon'ble Ms. P. Gopinath, Administrative Member -
The brief facts of the case are as under:
The applicant was proceeded against under Rule 16 of CCS (CCA) Rules on the ground that he failed to order combination of Postman beat for the period from 8.6.2012 to 25.6.2012 causing non-delivery or ordinary letters, speed post articles, registered letters, e-MOS for the period from 8.6.2012 to 25.6.2012. 3932 ordinary letters, 180 registered letters, 182 speed post letters, 11 registered parcels and 170 e-mos were detained in the office due to non-combination of Postman beat. He further failed to arrange clearance of letter boxes planted at Kalliasseri-Kannapuram Bridge for the period 8.6.2012 to 25.6.2012 from which 110 letters were recovered by the Assistant Superintendent of Post Offices, Taliparamba Sub Division when he got it opened.
2. The applicant submits that the volume of delivery work in Cherukunnu Mukhya Dakh Ghar is very heavy. The incumbent in the Postman Beat No. III passed examination for promotion to the cadre of Postal Assistant and he was relieved upon the orders of the respondent No. 3 on 5.5.2012. No alternate allotment was made by the respondent No. 3 nor the respondent No. 4 posted a Postman to fill the post. As the rules of the department do not permit engagement of outsiders in the vacant Postman post the only option left before the applicant was to engage willing Gramin Dak Sevaks to officiate in the post. Applicant had persuaded Shri Nanu Gramin Dak Sevak Mail Delivery of Thekkumbad Post Office which falls under his control to officiate in the post of Postman Beat No. III with effect from 5.5.2012. He worked in the vacancy from 5.5.2012 to 11.5.2012 and declined to take up the engagement from 12.5.2012 owing to the unmanageable work load. As such Gramin Dak Sevak Prapoil Post Office was engaged from 12.5.2012 to 7.6.2012 and he also declined to function from 8.6.2012. Hence, the applicant was compelled to order combination of beat to other two postmen from 9.6.2012. The pendency of articles in Postman Beat No. 3 was so alarming and hence a portion of articles received for delivery remained unattended. The applicant had informed the matter to respondent No. 3 and respondent No. 4 through his communication dated 3.5.2012, 17.5.2012, 5.6.2012, 8.6.2012, 14.6.2012, 19.6.2012, 20.6.2012 and 20.6.2012.
3. The respondents allotted a Postman to Cherukunnu Mukhya Dak Ghar on 26.6.2012 itself i.e. after 1B= months. Respondent No. 3 is the officer competent to make allotment of Postmen in a vacant post as he is the appointing authority and the respondent No. 4 the controlling authority of Postmen staff under his administrative control. A person who acts as a party in a cause cannot be a judge in the same cause. The Hon'ble Supreme Court in Arjun Choubey v. Union of India - AIR 1984 SC 1356 was pleased to hold that where a person himself is concerned with a matter acts as disciplinary authority the order arising there from is a nullity. The applicant submits that the respondents Nos. 3 & 4 who are responsible to allot and arrange posting of Postmen staff in the offices under their administrative control are responsible for the holding up of the articles at Cherukunnu Mukhya Dakh Ghar with effect from 8.6.2012 to 25.6.2012. The posting of a Postman in the vacant post was unnecessarily delayed by the respondents Nos. 3 & 4 up to 26.6.2012. Aggrieved the applicant has sought the following reliefs:
'(1) Quash Annexure A3 charge sheet, Annexure A5 punishment order and Annexure A7 appellate order and grant consequential benefits;
(2) Order the release of his increment withheld from 1.7.2013.'
4. The respondents in their reply statement contend that while the applicant was working as Postmaster at Cherukunnu, one of the Postman posts fell vacant on 5.5.2012 consequent on the promotion of the incumbent to the cadre of Postal Assistant. Though GDS substitutes were engaged to work in the post by the applicant in different spells initially with the concurrence of the 4th respondent, from 8.6.2012 onwards the applicant did not take any concrete steps or tangible action to arrange disposal of the postal articles received for delivery in the vacant Postman beat. As a result the delivery of mails and postal articles to the public which were carried out in the vacant Postman beat satisfactorily during the period from 5.5.2012 to 7.6.2012, became worse thereafter due to lack of timely arrangements in the vacant post on the part of the applicant. The applicant did not either enforce combination of duties of the particular vacant post among other delivery staff at his office by making orders to that effect in the Postmaster's Order book and getting the order signed by the other delivery staff. He also did not simultaneously entrust the pending postal articles for delivery with other delivery staff duly invoicing in their delivery slips, which he as the Postmaster of the office was supposed to do. Without taking concrete steps to tide over the crisis and to ensure prompt delivery of mails to the public, which is his primary duty as Postmaster, the applicant simply chose to enter into unwarranted correspondence in this regard, repeatedly with the 3 rd and 4th respondents describing the situations that arose out of the alarmingly increasing pendency of postal articles received at his office. The heavy pendency in delivery of postal articles at the office and the inordinate delay in delivery of the same to the public also invited several public complaints. Accordingly, the 3rd respondent ordered an inquiry into the case and as per the report of the 5th respondent who conducted the inquiry, 3932 ordinary letters, 180 registered letters, 182 speed post articles, 11 registered parcels and 180 eMOs received for delivery in the vacant postman beat at Cherukunnu MDG were pending and 110 ordinary letters posted by public in the letter box to be cleared by the postman of the vacant beat remained uncleared during the period from 8.6.2012 to 25.6.2012. This was cleared by the 5th respondent in the presence of the applicant on 25.6.201 as part of the inquiry. The applicant has also admitted his mistake in not arranging clearance of the letter box during the period and has also signed the inventory of the 110 ordinary postal articles cleared from the letter box in the presence of the 5 th respondent and himself on 25.6.2012. It was further revealed in the inquiry that even articles received during the period prior to 8.6.2012 when GDS substitutes were engaged, were pending for delivery at the Post Office which clearly indicated lack of supervision on the part of the applicant.
5. The applicant was proceeded against under Rule 16 of the Central Civil Services (Classification, Control and Appeal) rules, 1965 as per Annexure A3 memo No. G/Mails-Misc/CKU Pt 11, dated 23.7.2012 by the 3rd respondent on the two charges mentioned above. The Annexure A3 memo of charge has no relation with Annexure A2 order of this Tribunal. The order was pronounced by this Tribunal on 26.7.2012, 4 days after issue of Annexure A3 memo of charges. The applicant preferred Annexure A4 representation to the Annexure A3 memo of charge on 10.9.2012 stating that consequent on transfer of the incumbent of the Postman beat No. 111 from his office on promotion, no arrangements were made by the 3 rd and 4th respondents to post a regular Postman in the vacant post despite the requests made by him. That was the reason for accumulation of postal articles and resultant deterioration in the quality of mail delivery at his office.
6. Respondents aver that Shri P.S. Thankachan, Postman working in the particular beat had to be relieved from the Postman post so as to enable him to join on promotion the PA induction training scheduled to be held at Postal Training Centre, Mysore. This could not be delayed as it was a matter of promotion. But simultaneously there was practical difficulty in posting a regular Postman in the vacant post as there were 28 vacancies of Postman lying unfilled in the departmental quota due to poor participation of MTS officials in the departmental examinations in Kannur Division. The Division was already struggling hard due to the dearth of adequate Postman staff to be posted in all the earlier occurred long term vacancies at a large number of post offices. Also there was no request from any Postman in the Division for a transfer to Cherukunnu MDG. Hence, the averment that there was deliberate refusal /delay to post a regular Postman in the vacancy as alleged by applicant is not tenable at all as options to fill up the vacancies had been explored. It is also submitted that the Postman vacancies in 30 other offices in the Division were being manned by engaging GDS substitutes.
7. Applicant did not make any arrangements within the office by enforcing combination of duties of Postman which was a normal measure for managing the work in the vacant post as per the instructions on the subject. Further after having worked in the post of Postmaster, Cherukunnu PO for one year and having familiarized himself with the officials under him, the applicant cannot escape the responsibility of engaging a GDS in the vacant Postman post at his office particularly considering the fact that 6 branch offices are attached to Cherukunnu MDG where plenty of GDSs are available, who are supposed to work in the vacant Postman posts on higher remuneration. The applicant cannot simply pass on his responsibility by putting the blame on the 3rd respondent for not posting a regular Postman at his office especially when there were 28 Postman posts lying vacant in the Division prior to the Postman vacancy that occurred at Cherukunnu MDG. Also such vacancies in all other offices were being managed for a long time by employing GDS substitutes with the initiatives taken by the Postmasters concerned and hence it was not possible for the 3 rd respondent to post a regular Postman only at the applicant's office which was the last Postman vacancy at that time. Further in all other vacancies in other post offices, GDS substitutes were arranged by the in-charge of the offices concerned and nowhere the intervention of the 3 rd respondent was required for the purpose. As such instead of making unwanted and unwarranted correspondence on a day to day basis to the 3 rd and 4th respondents repeatedly without doing his duty, the applicant could have contacted the GDSs available under him and engaged them for the purpose, so that the accumulation of undelivered postal articles at his office could have been avoided. Further the applicant who had admitted the fact of not supervising the clearance of one letter box in the beat area of the vacant Postman at his office during the period from 8.6.2012 to 25.6.2012 before the 5 th respondent, the Assistant Superintendent of Post Offices, Taliparamba Sub Division, denied this fact in Annexure A4 representation stating that he had made all the arrangements to clear the ordinary articles posted in the particular letter box during the period.
8. The respondents submit that the applicant did not opt for a chance for personal hearing as required of him under Rule 16(1)(b) of the CCS (CCA) Rules, 1965 to refute the allegations levelled in Annexure A3 memo of charges. It was clearly established from the written statement the undelivered letters and non-clearance of letter box that the applicant did not take any action to arrange disposal of the undelivered postal articles during the period by making arrangement at his level even by enforcing combination of duties among other three delivery staff available at his office. He simply chose to correspond with the 3 rd and 4th respondents without taking any plausible action at his level to clear the pendency of the accumulated postal articles and timely clearance of the letter box available at his office premises during the period. No satisfactory explanation was given by him for non-action in Annexure A4 representation submitted with respect to the Annexure A3 memo of charges.
9. Accordingly, the disciplinary proceedings against the applicant were finalized taking into account all the oral and documentary evidences available on record in the case by awarding the punishment of withholding of one increment for a period of three years without cumulative effect considering the gravity of the charges levelled against him. Against the said punishment order, the applicant preferred appeal before the 2 nd respondent, the Director of Postal Services, Northern Region, Calicut as per representation dated 26.11.2012. The appeal was rejected by the appellate authority as per Annexure A7 order dated 4/5.6.2013 upholding the punishment imposed by the disciplinary authority.
10. Challenging Annexures A3, A5 & A7 the applicant filed the OA. The applicant did not take any action to arrange the disposal of the accumulated undelivered articles by combining the duties of the vacant post among the other three delivery staff at his office during the short 1B= months period from 8.6.2012 to 25.6.2012. The lack of timely action to provide a GDS substitute on the part of the applicant alone had resulted in the poor delivery performance and the resultant public complaints at Cherukunnu MDG during the period. Without taking valid and clear steps for the disposal of the articles either by ordering combination of duty or by engaging substitutes and keeping one letter box unopened at his office for a long period from which nearly 110 ordinary letters posted on various dates by public were cleared in his presence on 25.6.2012, the applicant did not discharge his primary responsibility of running a small post office. Simply by making repeated reports to the 3 rd and 4th respondent, the applicant cannot be absolved from his primary responsibility of ensuring timely delivery of mails to the public for which he is being paid.
11. Respondent states that a new post of GDSMD was created at Cherukunu MDG not by carving out area served by the Postman beat No. 3 alone as contended by the applicant but by a complete reorganization of the entire area served by the three Postmen at Cherukunnu MDG to which only a small portion of the area being served by the Postman beat No. 3 was added. This fact itself is enough to counter the argument of the applicant to the effect that only the area served by the Postman beat No. 3 of his office was vast. It is also worth mentioning here that prior to 5.5.2010 and after 26.6.2012 till 25.6.2013, when a new post of mail deliverer was created at the office, there were no evidence of the poor performance of Cherukunnu MDG as seen from the software data of delivery of the Project Arrow scheme linking all the departmental post offices with a view to assess delivery of postal articles. The Postman who was later transferred to the same vacant post, despite being quite new to the beat, was successful in satisfactorily completing the delivery of Postal articles in the same vacant beat even before the reorganization of the delivery beats at Cherukunnu MDG. Thus the postal articles remained undelivered not because of heavy work load in beat of Postman No. 3 only, as contended for by the applicant but due to the failure on his part to enforce combination of duties coupled with his inability either to engage or retain the willing GDSs to work in the post that had mainly contributed to the heavy hold up of undelivered mail at the applicant's office during the period. Also there was clear laxity on the part of the applicant in ensuring prompt clearance of one letter box in the post office cleared by utilizing the services of other staff available in the post office.
12. Respondent argues that Annexure A11 judgment of the Hon'ble Supreme Court relied on by the applicant is not relevant and applicable to this case since the basic issue dealt therein is entirely different from the facts of the present case. The appellant in Annexure A11 judgment was charged with gross indiscipline and misbehaviour against his appointing authority (respondent No. 3) on the basis of which he was dismissed from service by the latter, under the provisions of Rule 14 but without affording an opportunity of being heard in person thus violating the provisions of the Article 311 (2) of the Constitution of India. But in the instant case the applicant has been proceeded against under Rule 16 of CCS (CCA) Rules, 1965 for lack of devotion to duty on the basis of the clear, oral and documentary evidence adduced during the inquiry conducted in the case of hold up of a large number of postal articles at his office and for not arranging clearance of one letter box attached to his office for a long period despite being responsible for both activities as the in-charge of the office. The applicant did not seek any opportunity for personal hearing also as provided under Rule 16(1)(b) of CCS (CCA) Rules. The applicant was awarded the punishment on the basis of the evidence available on records after duly considering his Annexure A4 representation as well with an open mind by the disciplinary authority. The charges in this OA are for the lack of devotion to duty exhibited by the applicant. Applicant also did not order combination of the vacant Postman beat among other delivery staff at his office during the period, which was the primary step excepted of him as the Postmaster at a Mukhya Dak Ghar. Without even adopting the primary step as per rules, he has no right to claim that he has made all the efforts to clear the pendency. Despite having other staff like GDSMP, GDSMC at his office, the applicant did not utilize their services to ensure clearance of one letter box during the period from 8.6.2012 to 25.6.2012 of which 110 ordinary letters were arranged to be cleared in his presence on 25.6.2012 by the 5th respondent.
13. Heard the counsel for the applicant and respondents and the extensive and repeated written submissions made. The applicant was Postmaster of a small delivery post office with 3 postmen. Of this one post of Postman was vacant for the period 5.5.2012 to 25.6.2012 i.e. about approximately 43 days after deducting Sundays when the post office remains closed. The entire grievance in this OA rests on the premise that the respondent did not provide a substitute to manage the work of one short Postman for this short period. Applicant draws attention to Rule 221 of Post & Telegraph Manual , Vol. VIII which states that the Superintendent should pay particular attention to the arrangements for delivery of articles to the public and there should be no delay in delivery of paid and registered letters. The Superintendent should see that the distribution of articles to Postmen proceeds in a rapid and orderly manner for delivery of articles. What the applicant fails to mention is that similar instructions are issued for the Postmaster regarding his duties and responsibilities. Further there are 217 delivery post offices in Kannur Division which is spread over an area of 1761 sq. meters and it would be physically impossible on a every day basis for the Superintendent to visit and supervise the delivery operations of these 217 post offices. The Superintendent is located at the District headquarters at Kannur whereas the post office in this OA is at Cherukunnu which is at a distance of 16 Kms. from the office of the Superintendent. Hence, a daily supervision by the Superintendent of Post Offices is an impossibility.
14. The respondent also draws the attention of the Bench to Rule 95 of Postal Manual, Volume VI (Part I) Part III which is reproduced below:-
'Postal Manual Volume VI Part I -
95. Supervision by Postmaster -
(1) The postmaster should occasionally be present when station mail bags are opened, and articles are distributed to postmen for delivery in order to see whether the Postal Assistants who take part in the work of delivery and the postmen are punctual in attendance, whether the distribution of articles proceeds quickly and in an orderly manner and whether, as soon as all the articles for delivery are made over to them, the postmen leave the office in a body and start at once on their beats.
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97. Supervision over Postmen -
The Postmaster must bear in mind that one of his principal duties is to see to the prompt and correct delivery of articles by his postmen and that it is only by strict personal supervision that he can check delay and irregularity, especially in the delivery of unregistered articles. Where carelessness or dishonesty is suspected, articles returned may be sent out for delivery by the head postman. The postmaster should frequently and unexpectedly examine the contents of each postman's bag, to ascertain whether any articles in his possession have been unnecessarily detained and note the result in his order book; he should at the same time see that the bag is in good order. He must pay special attention to the rules for the delivery of insured articles. (emphasis provided) Postal Manual Volume VI Part III -
149. Clearance of outside Letter Boxes -
When a letter box attendant is about to proceed on his rounds, the postmaster or responsible Assistant should make over to him, the key of letter boxes, the changeable hour plates (when letter boxes are provided with these plates) and a bag in which to place articles found in the letter boxes. After the last letter box has been cleared, the attendant must return without delay to the post office where the postmaster or responsible attendant will receive from his the keys of letter boxes, the hour plates and the bag. The keys of the letter boxes and hour plates must be kept in the custody of the postmaster or responsible Assistant and never given out to the letter box attendants except at the hours fixed for them to leave the post office for the purpose of clearing the letter boxes.'
15. Despite the above clear directions conveyed in the Postal Manual regarding his duties as a postmaster the applicant caused non-delivery of 3938 ordinary letters, 180 registered letters, 182 speed post articles, 11 registered parcels and 180 eMOs received. 110 ordinary letters posted in the letter box remained uncleared during the period 8.6.2012 to 25.6.2012 which were cleared by the 5th respondent in the presence of applicant as part of the inquiry. The applicant, for the short period the post of postman remained unfilled, i.e. approximately 1B= months did not distribute the work among the existing postmen so that public inconvenience due to non- delivery of their mail or money order could have been avoided.
16. No public servant works in 100% perfect working conditions and his mettle is also not tested in perfect conditions. The real test of public service is in conditions where a public servant is required to innovate to ensure public service despite adverse conditions. Such adverse conditions were minor in the case of the applicant as it lasted for 1B= months with shortage of one postman. Viable options like combining beats which were available to applicant to get over this situation were not applied or explored. The applicant had 30 years of experience behind him and managing such exigencies should have come easily. The applicant appears to have spent more time in making eight communications on the subject of filling up one vacant post as averred by him in his OA than on managing the work of his office. The post fell vacant on account of promotion of the postman, a contingency which could not have been anticipated and a vacancy which could be filled in a future recruitment only. The applicant cannot escape his primarily responsibilities by hoisting them on others in the bureaucratic hierarchy. The applicant draws our attention to Annexure A12 DG Posts circular dated 2.9.2008 which states:
'The Divisional Heads/Gazetted Postmaster should engage paid substitutes (GDS) against the vacant/absentee/leave post of Group-D/Postman in Departmental Post Offices having a combined staff strength exceeding four Group D/Postman for a period not exceeding ninety days.' The applicability of the above DG circular to applicant's case is challenged as his post office has only 3 postmen and the post of one postman was vacant from 5.5.2012 to 25.6.2012, which was a period less than 90 days indicated in the above circular. There was nothing which prevented the applicant from seeking a telephonic order in implementing the above order by delegation or on behalf of. Further the 5 th respondent when he visited the post office with such substitutes the applicant failed to cooperate by engaging them. This clearly indicates a lack of devotion to duty and the desire to perform his duties despite exigencies of service.
17. The applicant has been proceeded against for non-delivery of 3938 articles a number which does not appear to be large enough to be intimidating to be arranged for delivery by a redistribution among other staff of the office as a temporary arrangement to tide over the contingency.
18. A perusal of Annexure A5 order of the disciplinary authority reveals that it is a well reasoned order wherein all aspects of the charges have been addressed with facts and reasons for action proposed. The disciplinary authority in his order has noted that there is no proof that the applicant had entrusted the undelivered articles to other postmen for effecting delivery. The disciplinary authority had also noted that there is no proof to show that the applicant had made an entry in the postmaster's order book ordering a combination of postmen's beat to resolve the problem of delivery of mail. It is also recorded that the public cooperated with the post office by taking delivery of their mail at the post office counter. The, applicant had caused not only delay in delivery of mail but also delayed the dispatch of mail by not opening the letter box. There has therefore, been a dereliction of duties and delaying of public service which cannot be excused. Applicant has betrayed the trust of the users of the post office in delivering them mail and money orders in time, a service for which they have made payment and have a rightful expectation of timely delivery. Respondent No. 3 is the notified statutory disciplinary authority of the applicant and the authorized officer to take disciplinary action. He is also the officer who supervises the work of applicant is therefore, the nominated statutory disciplinary authority. Any public servant entrusted with discharge of responsibilities cannot seek excuses for not performing the same. Any letter received in a post office has to be delivered to the addressee immediately. Post office does not reserve the right to detain a public person's communication entrusted to it for delivery. Further any money order by which a sender has entrusted the post office to make payment to a addressee cannot be detained in a post office without payment. The applicant appears to have not understood his duties and responsibilities. As in charge of the post office he cannot find excuses for non-performance, nor can he pass on his responsibility to others in the guise of non-performance.
19. Judicial review of administrative action is now well settled by a plethora of decisions by the courts and is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fide. Judicial review is not an appeal from a decision but a review of the manner in which the decisions is made or the decision making process. The punishment should not be one which would shock the conscience. The Apex Court in Govt. of A.P. v. Mohd. Nasrullah Khan - 2006 (2) SCC 373 held:-
'27. . . . . . The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.'
20. No public servant should get away with the impression that non- performance of his duties can be excused in a judicial review.
21. Original Application is devoid of merit and it is accordingly, dismissed. No order as to costs.
(P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER SA