Ramesh Chandra Baisak vs Inspector of Post Offices and Others

R.N. Misra, J.—Petitioner was employed as an Extra-Departmental Packer having been appointed on 13-3-1972. A theft took place in the Bhuban Sub-Post Office on 21-4-1974 and Petitioner was one of the accused persons facing charges under Sections 457 and 380, Indian Penal Code. On a finding that the prosecution failed to establish the charges, Petitioner and the other accused persons were acquitted. Thereafter in exercise of powers conferred under Rule 6 of the Rules relating to the Conduct and Services of the Posts and Telegraphs Extra-Departmental Agents, Petitioner''s services were terminated. Notwithstanding the termination on 28-4-1974 (Annexure-A), Petitioner was called upon to show cause on 26-3-1976 (Annexure-3) and again on 31-3-1976 (Annexure-1) as to why his services may not be terminated on account of the two different charges and ultimately an order of termination from service was passed on 11-4-1976 (AnnexureA). Petitioner assails the termination on the ground that he having put in more than three years of continuous service from the date of appointment, Rule 6 of the Rules was not attracted.

In the counter affidavit, opposite parties have pleaded that Petitioner''s services had actually been terminated on 28-4-1974 and he was not in employment thereafter. They rely on an admission contained in a representation of the Petitioner to the departmental authorities (Annexure-B) where this fact has been categorically stated. It is the stand of the opposite parties that the two proceedings and the subsequent order of termination, all taken in 1976, and no foundation because the relationship of master and servant had ceased to exist from 1974 and learned. Standing Counsel explains it by saying that it was a mistake.

The original of Annexure-B has been produced and Mr. Ramdas does not dispute it to be a genuine document. In the second paragraph of that representation, Petitioner has stated:

That while I was working as E.D. Packer, Bhuban S.O, I was terminated from service dated 27-4-1974 in connection with an alleged loss of Rs. 1000/- from B.O. Bag of Chandipal B.O. at Bhuban S.O.

This document had been produced along with the counter affidavit filed on 11-8-1977. Though more than eight months have passed since the document has been relied upon by the opposite parties for the submission that Petitioner''s services came to be terminated on 27-4-1974, Petitioner has not filed any further affidavit to challenge the correctness of -the position. We must accordingly hold that Petitioner''s services had come to an end by the order of termination under Annexure-A dated 28-4-1974 and he was not in employment at any time thereafter. If Petitioner''s services are found to have been dispensed with on 28-4-1974, he would not have to his credit three years of continuous service and therefore, Rule 6 would be attracted.

To meet this position, Mr. Ramdas for the Petitioner relied upon the decision of this Court in Paramananda Sahu v. Union of India and Ors. O.J.C No. 1591 of 1975 , disposed of on 24-3-1977. This Court relied upon the observations of a Bench of the Kerala High Court in the case of A.K. Sathi v. The Senior Superintendent of Post Offices, Ernakulam and Ors. 1973 KLJ 501, to the effect:.

...It is evident from the language of Rule 6 that an employee like the Appellant could have been dismissed only on one of the two grounds mentioned in the rule, either for generally unsatisfactory work or on any administrative ground. Since no ground is mentioned in the order of dismissal, it is clear that the rule has not been complied with....

The Bench of this Court while following the principle laid down by the Kerala High Court gave no further reasons for holding that in a case of this type, Rule 6 of the Rules would be taken to have been not complied with.

Undoubtedly, the power conferred under Rule 6 is exercisable in the event of two alternatives being satisfied, namely (i) generally unsatisfactory work or(ii) administrative ground. It is not the Petitioner''s case that either of these grounds is not existent in the instant case, nor is it his stand that as Rule 6 was invokable in the event of any of the alternatives being satisfied, as the appropriate alternave had not been indicated, mind had not been applied by the appropriate authority in making the order. Once such a case is not made out, we are not prepared to accept the proposition laid down by the Kerala High Court that mere reference to Rule 6 while making an order contemplated thereunder would not satisfy the requirement of law. It is not disputed that Rule 6 authorises making of the order contemplated therein in the event of any of the two alternatives being applicable. When Rule 6 is quoted as the basis for the order, it would follow that one of the alternatives mentioned therein did exist. It is open to the party challenging the order to show that neither of the alternatives existed and, therefore, the power under Rule 6 was not exercisable. To accept the contention that unless one of the alternatives had been indicated, exercise of power under Rule 6 would be bad, would not be proper. We are, therefore, not prepared to accept the statement of Mr. Ramdas that as the appointing authority had riot clearly indicated as to which of the alternatives in Rule 6 was being invoked, the order would be bad.

The main contention of Mr. Ramdas, therefore, fails and the Petitioner cannot get back to service.

It is conceded by learned Standing Counsel that Petitioner is entitled to his remuneration from 1st of April, 1974 up to 27th April, 1974 and he agrees that the payment would be made to the Petitioner. We would accordingly direct that the said payment be made within one month from the date of service of the writ.

Before we part with this case, we must make special mention of the negligence exhibited by the appointing authority in continuing a disciplinary proceeding against the Petitioner two years after his services had been terminated. The explanation of the learned Standing Counsel that the disciplinary authority who took action against the Petitioner in 1976 was a new officer and had not been acquainted with the events of the past, cannot at all be said to be a reasonable and cogent one. Any action by the new officer must have been on the basis of the records and it was the duty of the officer to be satisfied about the state of things before he chose to take action. By initiating proceedings in 1976 against an ex-employee and making a fresh order of termination of service, the appointing authority has put the Petitioner to unnecessary expenses in running to the Court in hope of getting relief. Though we are dismissing the writ petition on the finding that the Petitioner was not entitled to any relief, we think, he must be compensated for having made to run to Court which seems to be solely on the basis of the second proceeding. We would accordingly direct that the appointing authority must bear the costs of the Petitioner in the proceeding which we assess at Rs. 200/- (two hundred). We would, therefore, require the opposite parties to pay the said amount to the Petitioner along with the arrear salary found due above.

K.B. Panda, J.

I agree.

Ordered accordingly.