AI Structured Summary
Not yet generated for this judgment
Judgment
PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:
The applicant has approached this Tribunal to seek the following relief:
“8.1.The Hon'ble tribunal be pleased to direct the respondents to set aside and quash the impugned termination order under Memo No. A1/GDS/Corr dated 26.07.2023 removing the applicant form his regular engagement- (Annexure-1). Further, the Hon'ble Tribunal please to direct the respondents that the applicant shall be reinstated in service and will be entitled the consequential benefits.
8.2.The Annual increment from the date of his Joining and yearly Bonus which were not drawn in favour of the applicant should also be ordered to be paid to the applicant.”
The applicant was provisionally engaged in the post of Part time safaiwala on 30.04.2007, Jhargrarpar S.O and has been working since then. In the meantime the post of GDS packer fall vacant in lieu of the put off duty of Smt. Iaksmi Mahanta. An advertisement was issued by the Inspector of Post offices, Dhubri for filling the post of GDS Packer and applicant applied for the post and thereafter provisional appointment was issued to the applicant after completion of all formalities. Further, it was declared that his appointment would be governed by the Rules of GDS (conduct and Engagement) Rule,2011. Accordingly, he joined in the said post on 03.05.2014 (forenoon). Being satisfied with conditions and terms of the aforesaid Rules, the Superintendent of Post offices, Dhubri confirmed his appointment as GDS, Packer , Jagrarpar S.O under Dhubri Head Post offlce with effect from )1.05 2014 (forenoon). Applicant continued his service to the best satisfaction of the Respondents authorities without any blemish and any complaint.
The grievance of the applicant is, while he was working in the post as GDS Packer, Jagrarpar S.O under Dhubri H.O , he has been served a Memo No. A1/GDS/Corr dated 26.07.2023 issued by the IPOs,-Dhubri terminating him from the engagement of Packer, Jahagrarpar S.O forthwith without any prior notice nor giving a salary of one month in lieu thereof without even information to the superior authority.
Sri D. N. Sharma, learned counsel for the applicant submits that the termination of the service of the applicant as GDS Packer at Jhagrarpar, SO is highly illegal, arbitrary. No show cause notice was issued, without holding any inquiry, and in flagrant violation of the mandatory provisions of the Gramin Dak Sewak (Conduct and Employment) Rules, 2001, as well as the fundamental rights guaranteed under the Constitution of India. The impugned order of termination is void ab initio and is liable to be set aside on multiple grounds, including violation of principles of natural justice, violation of statutory rules, non-compliance of mandatory procedural safeguards.
By the date of impugned termination, the Applicant had served for more than eleven (11) years, rendering yeoman service to the Department of Posts without any adverse record or blemish in his service.
So according to the learned counsel for the applicant, the impugned order was issued without:
Any prior notice as mandated by the GDS (Conduct and Employment) Rules, 2001;
Any inquiry or opportunity of hearing to the Applicant;
Smt. Laksmi Mahanta having claimed reinstatement to the post;
Any finalization of the disciplinary proceedings against Smt. Laksmi Mahanta;
Any justification or reason being assigned in the termination order.
E. Status of Smt. Laksmi Mahanta
It is a crucial and material fact that as of the date of filing of this application, Smt. Laksmi Mahanta has neither claimed reinstatement to the post of GDS Packer, nor have the disciplinary proceedings initiated against her been concluded or finalized. The very contingency upon which the provisional appointment of the Applicant could be terminated i.e., the decision to take Smt. Laksmi Mahanta back into service has not occurred. Therefore, the condition precedent for termination has not been fulfilled, and the impugned order is wholly without basis.
Learned counsel for the applicant argues that the termination is void for violation of the GDS (Conduct and Employment) Rules, 2001. The appointment order expressly states that the Applicant "will be governed by the Gramin Dak Sewak (GDS) Conduct and Employment Rules, 2001." Rule 7 of the GDS (Conduct and Employment) Rules, 2001 prescribes the mandatory requirement of giving prior notice before terminating the services of a GDS employee. The said rule provides for a notice period or payment of notice pay in lieu thereof. By terminating the Applicant "with immediate effect" without any notice whatsoever, the Respondents have acted in gross violation of a statutory rule.
That the termination violates the principles of natural justice. The impugned termination order was issued without giving any notice, opportunity, or hearing to the Applicant. The principles of natural justice specifically the twin pillars of (i) audi alteram partem (hear the other side) and (ii) nemo judex in causa sua (no one should be a judge in their own cause) are deeply embedded in Indian constitutional jurisprudence and are applicable even to quasi-governmental and administrative actions.
That, a reading of the appointment order makes it pellucid that the only ground upon which the provisional appointment of the Applicant could be terminated without notice is: "if ever it is decided to take Smt. Laksmi Mahanta back into service." This is a specific and expressly stipulated condition precedent. The legal position is that in a conditional appointment, the condition must be strictly interpreted and applied. In the present case, the Applicant's continued service for 11 years, his acceptance into the GDS framework, and the non-finalization of the original vacancy-creating disciplinary proceedings together create a powerful legitimate expectation that his services would not be terminated in a cavalier and arbitrary manner.
That, the termination is arbitrary and violates article 14 of the Constitution of India which guarantees equality before law and prohibits arbitrariness in state action. No reason whatsoever has been assigned for the termination;
The Supreme Court in the landmark judgment of E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, enunciated the doctrine that arbitrariness and Article 14 are antithetical. The Court held: "Equality is a dynamic concept with many aspects and dimensions and it cannot be 'cribbed, cabined and confined' within traditional and doctrinaire limits. From the positivistic point of view, equality is antithetic to arbitrariness."
The Applicant has been in continuous service since 2007 initially as Part-Time Waterman and subsequently as GDS Packer from 2014 spanning a period of over 16 years in the Postal Department. The Supreme Court has consistently held that long, uninterrupted service in a government or quasi-government establishment creates rights that cannot be extinguished without due process. In the context of GDS employees specifically, the Supreme Court and various High Courts have held that the rules governing GDS employees must be applied harmoniously and that a GDS employee cannot be removed without following the prescribed procedure. Learned counsel for the applicant submits that the Hon’ble Gauhati High Court in Biren Bora v. Union of India, (2019) Gauhati HC, reiterated that GDS employees though not regular civil servants, are entitled to procedural fairness and cannot be removed arbitrarily.
Respondents have stated that Applicant was engaged on temporary basis against the post held by Smti Lakshmi Mahanta, GDS Packer who was under put-off duty. It is not correct -that the Applicant was engaged as GDS Packer in place of said Lakshmi Mahanta. No advertisement was issued to fill up the said post. Applicant was provisionally appointed against the said post of GDS“ Packer with some terms & conditions which is purely temporary and can be terminated at any time without notice (vide Annexure-A/3 to the O.A.).
The temporary arrangement of the Applicant made vide Letter dated 01.05.2014 was approved by the Superintendent of Post Offices, Dhubri Division. Applicant's original post is Part-time Safaiwala and his GDS was purely temporary (without any selection) as stop-gap arrangement. The irregular appointment cannot stand long. His service was GDS was terminated by the Respondent No.4 vide Letter dated 26.07.2023. The post of GDS are filled up by online selection with due process of selection. In the instant case no such procedure was followed. That the Inspector of Post is the appointing as well as disciplinary authority in case of Gramin Dak Sevak (GDS). Therefore, for any irregular appointment he is competent to terminate the engagement of GDS.
Sri D. N. Sharma, learned counsel for the applicant avers that, even assuming, without conceding, that the Respondents had some justification for the termination (which is denied), the abrupt and immediate termination without notice, after 11 years of service and without any disciplinary inquiry, would be wholly disproportionate to any objective sought to be achieved.
He places reliance on the decision rendered by the Hon’ble Apex Court in U.O.I Vs Bikash Kuanar (2006) 8 SCC 192, relevant para is reproduced as under:
“6.The Division Bench after hearing the counsel for the parties observed that the power of review is conferred by the statute. In case of an appointment made under the Rules framed for the purpose of appointment, such appointment could not be cancelled either by the same authority or higher authorities in exercise of power of administrative exigency. The High Court in the impugned judgment also stated that the civil rights had already accrued to the respondent who rendered one and a half years of service. Once such civil rights had accrued, the authorities exercising their executive power cannot review the appointment. The Division Bench held that the administrative instructions have no statutory force, therefore, these cannot be enforced and following such instructions, the respondent's appointment could not be legally cancelled. The Division Bench also directed that the respondent be given an opportunity to resume his duties within 30 days from the date of its order. ………xxxxxx……..
10.The Division Bench of the High Court, in our considered view, correctly applied the law, which has been crystallized in a number of decisions of this Court. Indisputably, the respondent has fulfilled all the essential terms and conditions for the appointment to the said post. The respondent alone had submitted all necessary and required documents before the date prescribed by the appellants. It may also be pertinent to mention that at the time of selection the respondent was the only one who had the experience of working continuously on the said post for a period of one and a half years. Perhaps, all these factors cumulatively persuaded the concerned authorities to select the respondent to the said post.”
He also relies upon the judgement in Chandra Sekhar Chaubey Vs U O I and others 2002(2) A T J pg 606 on 25.01.2012, relevant paras is as under:
“4…….. the applicant has completed more than three years continuous service and moreover he has been adjusted/absorbed against the same post, hence termination of appointment of the applicant without prior notice is totally in violation of Article 14 & 16 and against principles of natural justice. ………….xxxxx
8.Learned counsel for the applicant vehemently argued that the impugned order terminating the services of the applicant is totally illegal, arbitrary and in colourable exercise of powers as before passing the impugned order neither the applicant was given opportunity of hearing nor any notice was given to the applicant. He further argued that the impugned order of termination is also contrary to rule 8 of Gramin Dak Sevak (Conduct and Employment) Rules 2001, which mandates that who so ever have completed three years of service, his service cannot be terminated without firstly issuing the notice. He placed reliance upon the orders passed by this Tribunal in the case of Raghunath Singh Vs. U.O.I & Ors 2002 (2) A.T.J pg. 606, Devi Singh and Anr. Vs. U.O.I & Ors 2005 (1) ATJ pg. 274 and Y.P. Makwana Vs. U.O.I & Ors. -2003(1) ATJ pg. 352. On the basis of above judgments, counsel for the applicant submitted that the impugned orders be set aside. Secondly he submitted that the impugned order is also violative of principle of natural justice. In this regard he placed reliance upon the judgment of Honble Supreme Court in the case of R. Sulochana Devi Vs. D.M. Sujatha and Ors. 2005(1) ATJ pg. 671. Counsel for the applicant further argued that the impugned order of termination has been passed on the direction given by the higher authority and , therefore, the same is bad in law as the appointing authority has not applied his mind and only on the direction given by the higher authority his services have been terminated. He argued that the higher authority cannot review the appointment of the applicant. In this regard he placed reliance upon the judgment of Cuttack Bench of this Tribunal in the case of Bharat Chandra Hehera Vs. Secretary, Department of Posts, Ministry of Communication, New Delhi and Ors 2001(1) ATJ pg. 592, R. Jambukeswaran and Ors. Vs. U.O.I & Ors 2004 (2) ATJ (Full Bench) pg. 1, Jyotiraj Thirakappa Lalege Vs. The Senior Superintendent of Post Offices, Belgaum and Ors.- 2003(1) ATJ pg. 705 and U.O.I & Ors. Vs. Bikash Kuanar- 2006 (111) FLR 707 (S.C). xxxxxxx……………xxxx
14.14. In another O.A No. 231/08 decided on 05.04.2011 , the Jodhpur Bench of this Tribunal after analyzing the issue on the earlier precedent has come to the conclusion that those provisional appointees, who have rendered three years continuous service cannot be thrown out of service without issuing show cause notice as per rule 8 of GDS Rules 2001. Against the order of Jodhpur Bench, Union of India filed DBCWP No. 6246/11 U.O.I & Ors. Vs. Gopa Ram, which is dismissed by the Honble High Court of Rajsthan at Jodhpur vide its judgment dated 24.09.2011. The relevant observation made by the Honble High Court reads as under:-
We have perused the judgment impugned . In our opinion, the order passed by the learned Tribunal is perfectly in consonance with the provisions of law in view of the fact that before passing the order impugned no opportunity of hearing was given to the respondent applicant which is mandatory in view of the judgment of the Honble Supreme Court rendered in the case of D.K. Yadav Vs. J.M.A Industries Ltd. 1993 SCC (L&S) 723..
Thus, the view taken by co-ordinate Bench of this Court on interpretation of Rule 8 ibid. is clear to the effect that the employment of a GSBPM who have not rendered three years continuous service could be terminate at any time by notice in writing by either of the parties but when an incumbent have rendered three years service, no order terminating such service could be passed without opportunity of hearing. We find no reason to take any different view of the matter: and the Tribunal does not appear to have committed any illegality in holding, while following the decisions aforesaid that after continuous employment for over three years, the services of the applicant could not have been terminated by the petitioners without following the prescribed procedure. Though, a suggestion has been made that the safeguard under Rule 8 ibid. is available only to a regular GS who is appointed through regular process on substantive post by a competent authority but this suggestion neither appears to be in conformity with the plain language of Rule 8 or could be countenanced for the view already taken by this Court in Chandresh Kumar @ Chunni Lal (supra). In the aforesaid view of the matter and in the admitted fact situation that the services of the applicant were terminated without any notice, without any hearing, and without following the prescribed procedure, the only relevant point for determination is as to whether the employment of the applicant had been continuous for a period of three years or not; and, in this regard, we are unable to find any fault in the findings of the Tribunal that the applicant has indeed served for a continuous period of over three years. It is more than apparent that the repeated acts of so-called taking over and again over the chargewere aimed only at creating some artificial breaks in service. Obviously, the idea behind resorting to this methodology of artificial breaks had been to somehow obviate the operation of the GDS Rules, particularly Rule 8 ibid. that invests the incumbent with a right against termination after working continuously for three years.
15.Not only this it is settled law of land that a vested right cannot be taken away without show cause notice to the effected person. In this behalf reference is placed upon R. Sulochana Devi Vs. D.M. Sujata 2005(1) ATJ 671 and in the case of D.K. Yadav Vs. J.M.A Industries Ltd. 1993 SCC (L&S) 723. Even from perusal of rule 8 reproduced above indicates that those provisional appointees who have completed three years service should not be thrown out of service summarily without notice. In view of the above we find that the impugned order is not sustainable on this ground.”
We have heard the learned counsel for the parties and perused the records.
The applicant was initially engaged as Safaiwala in 2007 and while he was working at that post, the post of GDS Packer fell vacant due to the put off duty of one Smt. Lakhsmi Mahanta, GDS Packer as disciplinary proceedings is pending against her, so in order to fill up the vacant post, approval was made and applicant was provisionally appointed as GDS Packer in the year 2014. As per the respondents, such appointment was not a regular appointment, he was allowed to work as GDS as stop-gap arrangement and it was temporary arrangement. Now the grievance of the applicant is that, he has been terminated from the post of GDS Packer vide order dated 26.07.2023 without any show cause notice with no reasons accorded which is a cryptic order.
The provisional appointment of the Applicant was not merely an act of the Inspector of Posts. The appointment was approved by the Superintendent of Posts, Dhubri, who is the next higher authority. The abrupt and illegal termination of his services, without notice and without following due process of law after 11 years of service and without any disciplinary inquiry, would be wholly disproportionate.
Prima facie, this Tribunal after hearing the parties stayed the operation of the impugned order vide order dated 17.08.2023.
It is a settled position of law by the Hon'ble Apex Court that the persons who have been appointed against the vacant posts on temporary/stop gap arrangements cannot be replaced by the similar set of employee and this issue has already been settled by the Hon'ble Supreme Court in so many cases, some of which are mentioned below :-
State of Haryana & Ors Vs. Piara Singh & Ors. Reported in 1992 (4) SCC 118
Manish Gupta Vs. President, Jan Bhagidari Samiti [SLP (C) No. 12946 of 2017]
Since applicant has been working as Safaiwala since 2008 and he was provisionally appointed as GDS Packer, in lieu of the put off duty of one employee due to pending disciplinary proceedings against her, applicant provisionally appointed to fill in the vacant post rendering service effectively since 2014 as GDS and sudden termination as GDS almost after 9 years, that too, without notice and a cryptic order is highly arbitrary and no whisper has been made that Smt. Lakhsmi has been reinstated that she has to take back her position as GDS. In the impugned order, nothing was mentioned. His service has been used since 2014 and terminating him now without opportunity of hearing and no notice is against the settled position of law.
We quash and set aside the impugned order dated 26.07.2023 (Annexure A-1) and direct the respondents that until and unless regularly appointee has joined, applicant shall be allowed to continue in the service as GDS Packer.
With the above directions, the OA is disposed of. No costs. Pending M.A, if any, also stands disposed of.