JUDGEMENT ON GDS GRATUITY :
Abolition of Posts stayed by DoP:
Pr. CAT, Delhi order on abolition of PM & Gr.D Posts from 2005 to 2008
SUPREME COURT ORDER ON WP No.1003 of 2013
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(s). 1003 OF 2013
NATIONAL FED. OF POSTAL EMP. & ANR Petitioner(s)
UNION OF INDIA Respondent(s)
(With office report )
[FOR PREL. HEARING]
Date: 13/12/2013 This Petition was called on for hearing today.
HON'BLE MR. JUSTICE R.M. LODHA
HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
For Petitioner(s) Mr. M.R. Calla, Sr. Adv.
Mr. Uday Gupta, Adv.
Ms. Shivani M. Lal, Adv.
Mr. M.K. Tripathi, Adv.
Ms. Pratiksha Sharma, Adv.
Mr. Ankit Achariya, Adv.
Mr. Mohan Pandey,Adv.
UPON hearing counsel the Court made the following
O R D E R
Writ Petition is disposed of in terms of the signed order.
(Rajesh Dham) (Sneh Lata Sharma)
Court Master Court Master
(signed order is placed on the file)
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1003 OF 2013
NATIONAL FED. OF POSTAL EMP. & ANR. Petitioner(s)
UNION OF INDIA Respondent(s)
O R D E R
This is a Writ Petition filed under Article 32 of the Constitution of India by the National Federation of Postal Employees and All India Postal Employees Union GDS (NEPE). The principal prayers in the Writ Petition are, (one) that a direction be issued to the respondent to treat the Gramin Dak Sevaks as Civil Servants for all purposes at par with the other regular members of the civil services and regular employees in relation to all service matters including the pension and all retiral benefits, and (two) the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011 be declared invalid and unconstitutional.
2. Having regard to the controversy raised in the matter, we are satisfied that the grievance of the petitioners can be adequately considered by the High Court under Article 226 of the Constitution of India.
3. Since about three lakh persons serving as Extra Departmental Agents (Dak Sevaks) are concerned about the subject matter and they are spread all over the country, we are satisfied that to avoid multiplicity of proceedings in different High Courts, it would be appropriate that the matter is considered by one High Court.
4. We, accordingly, transfer this Writ Petition to the Delhi High Court for consideration.
5. The Registry shall transmit the record and proceedings of the Writ Petition to the Delhi High Court.
6. Upon receipt of the record and proceedings of the Writ Petition, the Registry of the Delhi High Court shall register the Writ Petition and proceed with the matter accordingly.
7. So far as this Court is concerned, Writ Petition stands disposed of.
( R.M. LODHA )
( SHIVA KIRTI SINGH )
DECEMBER 13, 2013
A FULL TIME CASUAL LABOURER WITH TEMPORARY STATUS OF Gr.D (GOVT. EMPLOYEE) COULD GET PENSION - CAT- BANGALORE BENCH
JUDGEMENT ON GDS GRATUITY :
ITEM NO.36 COURT NO.9 SECTION XV
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS -131172
Petition(s) for Special Leave to Appeal (Civil) No(s) .21309/2006
(From the judgment and order dated 18/05/2006 in CWP No. 7576/2006
of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)
SR.SUPERINTENDENT, P&T HOSHIARPUR ---- Petitioner(s)
SHAM DULARI & ORS. ---- Respondent(s)
Date: 07/12/2007 This Petition was called on for hearing today.
HON'BLE MR. JUSTICE A.K. MATHUR
HON'BLE MR. JUSTICE MARKANDEY KATJU
Mr. R. Mohan, ASG
Ms. Kiran Bhardwaj, Adv.
Mr. V.K. Verma, Adv.
Mr. D.S. Mahra, Adv.
Mr. Sanjay Parikh, Adv.
Ms. Anitha Shenoy ,Adv.
Mr. Jitin Sahni, Adv.
Mr. A.N. Singh, Adv.
Ms. Mamta Saxena, Adv.
UPON hearing counsel the Court made the following
0 R D E R
Heard learned counsel for the parties.
We are not inclined to interfere in this Special Leave Petition.
The same are accordingly, dismissed.
However, the question of law is left open.
(Sukhbir Paul Kaur) (Vijay Dhawan)
Court Master Court Master
IN THE HIGH COURT OF PUNJAB AND HARYANA JUDGEMENT OF GDS GRATUITY AT CHANDIGARH CWP No. 7576 of 2006
Date of Decision: May 18, 2006
Sr. Supdt. of Post Offices ... Petitioner
Smt. Sham Dulari and others ... Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE M.M.S. BEDI
PRESENT: Mr. MS Guglani, Advocate for the petitioner
M.M. KUMAR, JUDGE
The Senior Superintendent of Post Offices, Hoshiarpur has challenged order dated 21.8.2003 (Annexure P.3) of the Controlling Authority appointed under the Payment of Gratuity Act, 1972 whereby he has been directed to pay a sum of Rs.12, 286/- as gratuity alongwith interest @ 10 percent from 25.12.2001 till the date of payment to the claimant. The afore-mentioned order has been upheld by the Appellate Authority i.e. Regional Labour Commissioner (Central), Chandigarh, vide its order dated January 5, 2006 (P-6)
Brief facts of the case are that one Shri Ram Murti was appointed as Extra Departmental Agent (EDA) on 4.9.1982 and he retired from service on 24.11.2001 after rendering 18 years 9 months and 25 days of continuous service who is now represented by his widow. After one month he died and had nominated his wife (hereinafter to be referred as respondent workman). The department of the Post Office represented through the petitioner had paid him an amount of Rs.16, 520/- as gratuity in accordance with the Post and Telegraph Extra Departmental Agent (Conduct) Service Rules, 1964 (for brevity EDA Rules). However, his widow has claimed gratuity under sub rule 1 of Rule 10 of the Payment of Gratuity (Central) Rules, 1972. She has claimed a sum of Rs.57, 692/- for the period of service rendered by her husband (18 years 9 months and 25 days). Despite representation made to the petitioner department for grant of balance amount of gratuity under the Payment of Gratuity Act, I 972 (for brevity 'the Gratuity Act') the same has not been paid to the respondent-workman. The Controlling Authority came to the conclusion that the case of the respondent- workman was covered by the definition of expression 'employee' as used in Section 2( e) of the Gratuity Act. It was also admitted by the petitioner- department that services of the respondent-workman has been considered out of the purview of Central Civil Service Rules. Placing reliance on Section 14 of the Act, the Controlling Authority held that payment of gratuity to any person cannot be denied on the ground of any other provision in any other Act/ Statute or Rules. Therefore, the plea that under the EDA Rules the gratuity is payable and the same would take the case of the respondent-workman out of the purview of the Gratuity Act has been rejected. Accordingly, an amount of Rs. 28,806/- has been calculated to be payable amount as gratuity under the Gratuity Act by taking into account the service period of 19 years of the respondent- workman. As the amount of Rs.16,520/- stands already paid, the balance amount of Rs. 12,286/- has been worked out. Accordingly a direction was issued for payment of the afore-mentioned amount. The order of the Controlling Authority was challenged by the petitioner- department before the appellate Authority cum Regional Labour Commissioner who rejected the argument that the services of the workman were regulated by the Central Civil Service Rules according to the judgement of the Supreme Court rendered in the case of U.O.I. and others v. Kameshwar Parshad 1997) 11SCC 650 by observing that Hon'ble the Supreme Court did not hold that EDA employees were holding the post under the Central Government. It was' infact held that they were Civil servants and were entitled to protection of Article 311 (2) of the Constitution. The view of the Appellate Authority -is evident from the concluding two paras of the order and the same reads as under:
"In this case, it is transparently clear that the post held by the husband of the respondent/applicant was a post not governed under CCS (Pension) Rules. The respondent/employee was Extra Departmental Branch Postmaster in the establishment of postal departmental and as such he was not holding a post under the Central Government. The service condition of the workman was governed under provisions of Extra Departmental Agents now known as Gramin Dak Sewaks but the provisions of the act are less favourable than the Payment of Gratuity Act, 1972. Hence, the ld. Controlling Authority has rightly held that the respondent/employee is an employee within the purview of Section 2(e) of the Payment of Gratuity Act, 1972.
In view of the above findings, this Appellate Authority after affording the opportunities to the parties hereby confirmed the decision dated 21.8.2003 of the ld. Controlling Authority-cum-Asstt. Labour Commissioner (C) Chandigarh."
Mr M.S.Guglani, learned counsel for the petitioner has submitted that an employee has been defined in Section 2(e) of the Gratuity Act and it does not cover any such person who is governed by some other rules of the department. According to the learned counsel, the EDA Rules 1964 which are now known as Gramin Dak Sewak (Conduct and Employment) Rules, 2001 regulate the payment of gratuity to the workman and, the Gratuity Act would not be applicable. Accordingly, gratuity has to be paid to them in accordance with the EDA Rules. Therefore, the view taken by the Controlling Authority or the Appellate Authority accepting the workman respondent as an employee under the Act is absolutely incorrect. Learned counsel has further submitted that under the EDA Rules, the workman respondent has already been paid the gratuity amounting to Rs.16,520/- and no further gratuity is payable as the provisions of the Gratuity Act do not apply to the instant case.
We have thoughtfully considered the submissions made by learned counsel for the petitioner- department and regret our inability to accept the same because the definition of expression 'employee' in Section 2 (e) has to be read with Section 5 and 14 of the Gratuity Act. The aforementioned provisions of Section 2 (e), 5 and 14 are extracted below for faclity of reference: -
"2 Definitions.- In this Act unless the context otherwise requires,
(e) "employee" means any person (other than an apprentice) employed on wages, (* * *) in any establishment, factory, mine, oilfield, plantation, port, railway, company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, (and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.
5. Power to exempt.- [(1)] The appropriate Government may, by notification, and subject to such conditions as may, be specified in the notification, exempt any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act if, in the opinion of the appropriate Government, the employees in such establishment, factory, mine, oilfield, plantation, port, railway company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.]
(2) The appropriate Government may, by notification and subject to such conditions as may be specified in the notification, exempt any employee or class of employees employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, such employee or class of employees are in receipt of gratuity or pensionary benefits nor less favourable than the benefits conferred under this Act.]
[(3) A notification issued under sub section (1) or sub section (2) may be issued retrospectively a date not earlier than the date of commencement of this Act, but no such notification shall be issued so as to prejudicially affect the interest of any person.]
14. Act to override other enactments, etc.- The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act."
According to the definition of expression employee, any person who is employed on wages in any establishment, factory, mine etc., who may be performing the duty of a skilled, semi-skilled, or unskilled, supervisory, technical or duties of clerical nature, has been included in the expression' employee'. However, the expression 'employee' is not to /include a person who holds a post under the Central Government or State Government and is governed by any other Act or by any Rules providing for payment of gratuity. The respondent- workman is not governed by Central Civl Services (Classification, Control and Appeal) Rules, 1965, as has been expressly held by Hon'ble Supreme Court in para 3 of the judgment in Kameshwar Parshad's case (supra). It has further been held that the Extra Departmental Agent are entitled to the protection of Article 311 (2) of the Constitution and they are governed by separate set of Rules, namely, the EDA Rules. Therefore, it does not follow that the Extra Departmental Agent hold a post under the Central Government for the purposes of pension and gratuity. In other words, within the meaning of Section 2 (e) of the Gratuity Act, the respondent- workman cannot held to have held a post under the Central Government for the purposes of pension and gratuity. Para 3 and 4of the judgment is extracted below for the facility of reference:
"3. The Extra Departmental Agents are government servants holding a civil post and are entitled to the protection of Article 311(2) of the Constitution (See: Supdt. of Post Offices v. P.K. Rajamma).They are governed by separate set of rules, viz., the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 (hereinafter referred to as "the Rules").The Central Civil Services (Classification, Control and Appeal) Rules are not applicable to this category of employees in view of the notification dated 28.1.1957 issued by the Government of India under Rule 3 (3) of the said Rules.
4. In Rule 4 of the Rules it is provided that the employees shall not be entitled to any pension. . Rule 5 relates to leave. Rule 6 deals with the termination of services. Rule 7 prescribes nature of penalties that can be imposed. Rule 8 prescribes the procedure for imposing a penalty. Rule 8-A specifies the cases in which the provisions of Rule 8 would not be applicable."
We are further of the view that the scheme of the Gratuity Act indicates that it is not applicable to cases where any other rule or statute is more beneficial than the Gratuity Act. For the aforementioned proposition, reliance may be placed on a judgment of the Supreme Court in the case of E.I.D. Parry (I) Limited v. G. Onkar Murthy, (2001) 4 SCC 68. The converse would also be true that in cases where the Gratuity Act is more beneficial than the Rules, Regulations or any statute then the Gratuity Act would apply. It is evident that Section 5 of the Gratuity Act expressly requires an order of exemption in favour of any organistion exempting it from the operation of the Gratuity Act in respect of any establishment etc. to which this Act applies. Section 5 further lays down that the declaration is given in cases where the gratuity or pensionary benefits are not less favourable then the benefits conferred under this Act. A perusal of Section 14 makes it obvious that the provisions of the Act and the Rules framed thereunder ought to have the effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. This non-obstante clause also excludes the application of any other rules. The aforementioned view is fully supported by a judgment of the Supreme Court in the case of Municipal Corporation of Delhi v. Dharam Parkash Sharma and other, (1998) 7 SCC 221. The short question which was considered by their lordships was, whether an employee of the Municipal Corporation, Delhi was entitled to payment of gratuity under the Gratuity Act when the Corporation itself had adopted the provisions of Central Civil Service (Pension) Rules, 1972, which provide both for payment of pension as well as of gratuity. The Hon'ble Supreme Court rejected the argument of the Corporation, namely, that when the Central Civil Service (Pension) Rules, 1972, provide a package by itself, which has been applied to the employees of the Corporation then the provisions of Gratuity Act were not applicable and held as under: -
"We have examined carefully the provisions of the Pension Rules as well as the provisions of the Payment of Gratuity Act. The Payment of Gratuity Act being a special provision for payment of gratuity, unless there is any provision therein which excludes its applicability to an employee who is otherwise governed by the provisions of the Pension Rules, it is not possible for us to hold that the respondent is not entitled to the gratuity under the Payment of Gratuity Act. The only provision which was pointed out is the definition of "employee" in Section 2(e) which excludes the employees of the Central Government and State Governments receiving pension and gratuity under the Pension Rules but not an employee of the MCD. The MCD employee, therefore, would be entitled to the payment of gratuity provided for under the Payment of Gratuity Act. The mere fact that the gratuity is provided for under the Pension Rules will not disentitle him to get the payment of gratuity under the Payment of Gratuity Act. In view of the overriding provisions contained in Section 14 of the Payment of Gratuity Act, the provision for gratuity under the Pension Rules will have no effect. Possibly for this reason, Section 5 of the Payment of Gratuity Act has conferred authority on the appropriate Government to exempt any establishment from the operation of the provisions of the Act, if in its opinion the employees of such establishment are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act. Admittedly, MCD has not taken any steps to invoke the power of the Central Government under Section 5 of the Payment of Gratuity Act. In the aforesaid premises, we are of the considered opinion that the employees of the MCD would be entitled to the payment of gratuity under the Payment of Gratuity Act notwithstanding the fact that the provisions of the Pension Rules have been made applicable to them for the purpose of determining the pension. Needless to mention that the employees cannot claim gratuity available under the Pension Rules."
The aforementioned observation in fact squarely apply to the facts of the present case. There is no declaration under Section 5 exempting the application of the Gratuity Act to Extra Departmental Agents. Moreover, the EDA Rules, are not more beneficial than the benefits which are available to the respondent- workman under the Gratuity Act. Such a declaration could not have been given by the competent authority exempting the Extra Departmental Agents from the operation of the provisions of the Gratuity Act. Therefore, on principle as well as on precedents, we have reached the conclusion that the view taken by the Controlling Authority as well as Appellate Authority are not open to any attack in law and it does not furnish any opportunity to interfere with the same. Therefore, we are inclined to uphold the order dated August 21, 2003 (P-3) passed by the Controlling Authority and the order dated January 5, 2006 (P-6) passed by the Appellate Authority.
The argument of the learned counsel that the respondent workman is not covered by the definition of expression 'employee' as used in Section 2 (e) of the Gratuity Act does not require any detailed consideration because of the view expressed by the Hon'ble Supreme court in Dharam Parkash Sharma's case (supra). In that case also Central Civil Service (Pension) Rules, 1972 were adopted by the Municipal Corporation, yet the Hon'ble Supreme Court held that the Gratuity Act would apply in view of Section 5 read with Section 14 of the Gratuity Act. Therefore, we have no hesitation in rejecting the argument raised on behalf of the petitioner- department.
For the reasons aforementioned, this petition fails and the same is dismissed.
Accordingly, we direct that the respondent- workman be paid her dues within a period of one month from today, failing which the annum from the date, the amount became due till the date of actual payment.
The office is directed to send a copy of 'this order to the respondent- workman for information and further necessary action.
M.M.KUMAR M.M. S. BADI
THEYYAM JOSEPH CASE JUDGEMENT :
In the Supreme Court of India-Civil Appellate Jurisdiction
Civil Appeal No.3385-86 of 1996.
[Arising out of SLP [C] No. 587-88 of 1992].
Sub-Divisional Inspector of ……………… Appellants
Post, Vaikam & Ors. etc.
Theyyam Joseph etc. ---Respondents
C.A. Nos. 3392, 3391, 3387, 3389, 3388 and 3390 of 1996.
[Arising out of SLP (C) Nos. 6163/93, 2593/94, 10190, 1918, 17577, 1919/95].
Civil Appeal No. 2431 of 1994
C.A. Nos 3389, 3390, 3387, 3388 and 3362 of 1996.
[SLP Nos. 1918, 1919, 10190 and 17577/95, 6163/93 and C.A. No. 2431/94].
We have heard the learned counsel on both sides.
Shri N.G. Malik, E.D. Packer was recruited on September 21,1991 and sent for training from September 23,1991 to October 2,1991. The respondent came to be appointed as a substitute w.e.f. September 21,1991 without observing any formality of appointment, as a stop-gap arrangement. It would appear that N.G. Malik had not reported for duty after the training and the respondent continued in the post of E.D. Packer. On August 2, 1993, without notice, he was terminated from service. He approached the CAT, Ahmedabad Bench in O.S. No. 51/1994 and some are the facts in all other cases.
The Tribunal by its impugned order dated May 12, 1994 allowed the case, set aside the order of termination of Sailesh Kumar on the ground that the appellant is an industry, the respondent is a workman governed by the Industrial Disputes Act. 1947 (for short, 'the Act'). Under Section 25F, no notice was issued terminating the service nor retrenchment compensation was paid, therefore the respondent is entitled to reinstatement and it would be open to the appellant to take action against the Act. Thus these appeals by special leave. Similar views are expressed by all the Tribunals covered in the batch.
Shri Goswami, learned senior counsel for the appellants, contended that appointments of these Extra-Departmental Agents are regulated under the statutory instructions issued by the Director General of Postal and Telecommunication from time to time. Being governed by those statutory rules, they are not permanent employees. They are only part-time employees on contract basis subject to the conditions mentioned therein. Therefore neither the appellant is an industry nor is the respondent a workman under the provisions of the Act. The Tribunal, therefore, was wrong in its finding that the provisions of the Act are attracted. The learned counsel for the respondent and also Sri Nambiar, counsel appearing counsel who appeared for Union of India before the Tribunal have conceded that the appellant is an industry and, therefore, the Tribunal was right in its conclusion that the procedure prescribed in the Act shall be followed. Since no notice under Section 25F of the Act was given, the termination of he service is illegal and, therefore, is consistent with law.
Having regard to the contentions, the question arises whether the appellant is an Industry? India as sovereign socialist, secular democratic republic has to establish an egalitarian social order under rule of law. The welfare measures partake the character of sovereign functions and the traditional duty to maintain law and order is no longer the concept of the State. Directive principles of State policy enjoin on the State diverse duties under Part IV of the Constitution and the performance of the duties are constitutional functions. One duties is of the State is to provide telecommunication service to the general public and an amenity, and so is one essential part of the sovereign functions of the State as welfare Stat. It is not, therefore, an industry.
The appointment of the respondent is governed by the Rules in Section-III of the compilation of Swamy's service Rules for Extra-Departmental Staff in Postal Department. The Rules provide the method of recruitment there under. The age qualification has been prescribed between 18 to 65 year. The educational qualifications have been prescribed with, Matriculation as minimum qualification of Extra-Departmental ED Sub-Postmasters and ED Branch Postmasters. VIII Standard as minimum educational qualification has been prescribed for ED Delivery Agents, ED Stamp Vendors and all other categories of EDAs and preference is given to the candidates with matriculation qualification. Income limit and holding of property have been regulated in Rule 3 there. It is mentioned that the persons an adequate means of livelihood and is a resident of the place as mentioned in the Rules. The persons are selected under the specified conditions; any appointment made is in the nature of a contract liable to be terminated by notice given in writing. Sub-rules (3) to (5), prescribed the verification of the antecedents and medical examination etc. Rule 6 provides that employment to disabled ex-service personnel is to be given. Rule 7 gives preference to the SC and ST in appointments. Rule 8 finds the percentage of post for the recruitment of the Scheduled and Scheduled Trible candidates. Rule 9 gives right to appoint even the teachers as Extra-Departmental Agents. Rule 10 prescribes the method of appointment of the teachers as Extra-Departmental Agents. Rule 11 prohibits employment of near relation in the same office. Rules 12 prescribes appointment of ED Branch Post Master by Inspectors. Rules 13 prescribes provisional appointment of Extra Departmental Agents.
The scale of pay has been prescribed in Section V and for Calculation of Consolidated Allowance instructions are issued from time to time under Rule 2.1 dealing with Extra Departmental Sub-Postmaster/ED Sorters/ED Sub-Record Clerks. The basic allowance payable to them shall be subject to a minimum of Rs. 385/- P.M. and maximum of Rs.620/- P.M. The workload of them has been mentioned in Rule 2.1(b) (C) (d), Rule 6 prescribes for office Maintenance Allowance and Rule 5 for cycle allowance. Rule 7 relates to Fixed Stationery Charge. It would thus be seen that payment of salary has been regulated under these rules elaborated in further rules.
Section II provides for EDA Conduct and Service Rules. Rule 6 deals with power of termination and as under:
"6. Termination of Services-(a) The services of an employee who has not already tendered more than three year's continuous service from the date of his appointment shall be liable to termination at any time by a notice in writing given either by the employees to the appointing authority or by the appointing authority to the employees; (b) the period of such notice shall be one month.
Provided that the service of any such employees may be terminated forthwith and on such termination, the employee shall be entitled to claim a sum equivalent to the amount of his basic allowance plus dearness Allowance for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for period by which such notice falls short of one month.
Note-Where the intend effect of such termination has to be immediate, it should be mentioned that one month's basic allowance plus Dearness Allowance is being remitted to the ED Agent in lieu of the notice of one month through money order". Rule 7 prescribes the nature of the penalties which reads as under:
"7. Nature of penalties-The following penalties may, for good and sufficient reasons and as hereinafter provided be imposed on an employee by the appointing authority, namely:-
(ii) Debarring of ED Agents from appearing in the recruitment examination for the post of postman and/or from being considered for recruitment as Postal Assistants/Sorting Assistants for a period of one year or two years or for a period not exceeding three years;
(iii) Debarring of ED Agents from being considered for recruitment of Group 'D' for a period not exceeding three years.
(iv) Recovery from allowance of the whole or part of any pecuniary loss caused to the government by negligence or breach of orders:
(v) Removal from service which shall not be disqualification for future employment".
It would thus i.e. seen that the method of recruitment, the conditions of service, the scale of pay and the conduct Rules regulating the service conditions of ED Agents are governed by the statutory regulation. It is now settled law of this Court that these employees are civil servants regulated by these conducts rules. Therefore, by necessary implication, they do not belong to the category of workmen attracting the provisions of the Act. The approach adopted by the Tribunal, therefore, is clearly illegal.
It is seen that the respondent was appointed as a substitute to the regular candidate who did not ultimately turn up for duty after training. The respondent having been appointed and having worked de hors the rule, therefore remains to be an ad-hoc Extra Departmental packer. He will be entitled under the Conduct Rule 6 to the payment of the amount to be calculated for one month allowance plus D.A. The same shall be paid. The Tribunal was wholly wrong in directing the applicant to terminate the service in accordance with the provisions of the Act. The respondent is at liberty to apply for, along with other candidates, when any vacancy arises and is filled up. The appellant is directed to consider his case which will also be done according to the rules. He may be considered if he is found eligible and may be appointed to the post per rules.
The appeals are accordingly allowed.
C.A No. 3387 /96 @SLP(C) No.2593/94
The facts of this case are that the respondent was selected on regular basis as substitute to Extra-Departmental Packer at Calicut. While he was working, recruitment was made by calling the names from the Employment Exchange since his name was not sponsored, he was terminated from employment. In view of the reasoning given above, he being temporary working candidate, he cannot get any right; however, his case is directed to be considered along with other candidates and if he is found eligible he may be considered and appointed according to the Rules.
The appeal is allowed.
C.A Nos. 3385-86 of 1996(@SLP Nos.587/92)
Leave granted. Delay condoned.
Thought the principle of law laid down hereinbefore is settled, since the respondent has been working since 1983, we decline to interfere with the order passed by the Tribunal.
Appeals are accordingly dismissed No costs.
P.K.RAJAMMA CASE JUDGEMENT :(SC - 1977)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE
CIVIL APPEALS NOS. 1172, 1354, 1355 & 1751 OF 1972
(Appeals by Special Leave from the judgement and Order dated the 27-9-1971 of the Kerala High Court in O.P. No.1339/70, W.A. No.8/70, 8/70 WA. No.420/69 & O.P. No.862 of 1969 Respectively).
The Superintendent of Post Offices etc.
P.K.Rajamma, etc. Respondents.
CIVIL APPEAL No. 2275 OF 1972
(Appeal by Special Leave from the Judgement and Order dated the 18-11-1971 of the Andhra Pradesh High Court in writ Petition No.5662/70).
The Superintendent of Post Offices &
A.Surya Rao. Respondents.
CIVIL APPEALS NOS. 1015/73, 1865/74 AND CA.506/76
(From the Judgements and Orders dated the 7-9-72, 22-7-74 NS 30-10-75 OF THE Andhra Pradesh High Court in Writ Petitions Nos. 4717/71, 3914/74 & 4213/75 respectively).
The Supdt. of Post Offices etc. Appellant.
P.Narayana Rao etc. Respondents.
CIVIL APPEAL NO.1866 OF 1973 & 1867/73.
(Appeals by Special Leave from the Judgement and Order dt. the 15-2-1972 of the Andhra Pradesh High Court in Writ Petition No. 2933 & 3385/71 respectively).
The Postmaster General, Andhra Circle,
Hyderabad-1 etc. & Ors. Appellants.
M.Kishaiah etc. Respondent.
CIVIL APPEAL No.1234 of 1974
(Appeal by Special Leave from the Judgement and Order dated the 18-10-1973 of the Andhra Pradesh High Court in S.A. No. 360 of 1972).
Union of India Appellant
M.Tumbeswara Rao. Respondent.
CIVIL APPEALS NOS. 1300 & 1393 OF 1976.
(From the Judgement and Order dated the 5-12-1975 of the Kerala High Court in Writ Appeals Nos. 414 & 415 of 1975).
Union of India & Ors. Appellant.
K.T.Kunjappan etc. Respondent
CIVIL APPEAL No. 1313 of 1976.
(Appeal by Special Leave from the Judgement and Order dated the 10-3-76 of the Orissa High Court in OJC No. 531/74).
Union of India & Ors. Appellants.
Gokulananda Das Respondent
The 22nd day of April 1977
The Hon’ble the Chief Justice, M.H.Beg.
The Hon’ble Mr. Justice, A.C. Gupta.
The Hon’ble Mr. Justice P.S.Kailasam.
For the Appellants Mr. Niren Do. Attorney Genental
in All the Appeals in CAs. 1171, 1354-1355.
Mr. V.P. Raman, Addl. Sol. General
in CAs.2275 & 1313.
(Mr. B.Datta, Advocate in CAs.
1172, 1355 & 2275 &
Mr. GrishChandra, Addvocates (with them)
For the Respondent Mr. Vepa Sarthi, Senior Advocate,
in OA 1172/72 (Mr. N.Sudhakaran & Mr. P.K.Pillai,
Advocate with him).
For Respondent Mr. Vepa Sarthi, Senior Advocate-
in CAs. 1354, (1354).
1751/72 & 1300 (Mr. K.M.K.Nair & Mrs. B.Krishan,
& 1393/76 Advocate with him).
For Respondent in Mrs. S.Gopala Krishnan, Advocate.
For Respondents Mr.K.Jayaram & Mr. K.Ram Kumar,
CAs 1866-77, 1015/73 Advocates.
& 1865 of 1974 &
For Respondent in Mrs. Veena Devi Khanna, Advocate.
For Respondent in Mr. C.S.Rao, Advocate.
The following Judgment of the Court was delivered by;
The respondents in all these fourteen appeals, some of which are on certificate and some by special leave, are extra-departmental agents connected with the postal department. Six of these appeals are from the Kerala High Court, seven from the Andhra Pradesh High Court and one from the Orissa High Court. These respondents were either dismissed or removed from service during the period between January 1, 1966 and June 19, 1974, and admittedly the order of dismissal or removal was passed without complying with the provisions of Article 311(2) of the Constitution. The question in each case is whether the respondent held a civil post as contemplated in Article 311 of the Constitution; if he did, the dismissal or removal, as the case may be, would be unquestionably invalid for non-compliance with Article 311(2).
The conditions of service of the respondents are governed by a body of rules called the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 (hereinafter called the rules) issued under the authority of the Govt. of India. Rule 2(b) of the rules defining “Extra Departmental Agent” includes within the category, among others, Extra Departmental Sub Postmasters, Extra Departmental Branch Postmasters, Extra Departmental Delivery Agents, and several sections of class-IV employees. Eleven of the respondents are extra departmental branch Postmasters, one is an extra departmental delivery agent, and two are Class-IV extra departmental employees. In all these cases the High Courts have found that the respondents held civil posts under the Union of India and the orders terminating their services in violation of Article 311(2) of the Constitution were invalid.
This Court in state of Assam and others V.Kanak Chandra Dutta (1) has explained what is a post is. In that case the respondent who has a Mauzadar in the Assam Valley was dismissed from service in disregard of the Provisions of Article 311(2). It was held that “having regard to the existing system of his recruitment, employment and functions”, he was “a servant and a holder of a civil post under the State”, and therefore entitled to the protection of Article 311(2). This Court observed;
“…….a civil post means a post not connected with defence and outside the regular civil services. A post is a service or employment….
……There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State’s right to select and appoint the holder of the Post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration.”
A post, it was explained, exists apart from the holder of the post. “A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post. “Turning now to the rules by which the respondents were admittedly governed, it appears that they contain elaborate provisions controlling the appointment, leave, termination of services, nature of penalties, procedure for imposing penalties and other matters relating to the conduct and service of these extra departmental agents. There is a schedule annexed to the rules naming the appointing authorities in respect of each category of employees. Rule 5 states that the employees governed by these rules shall be entitled to such leave as may be deter\mined by the Govt. From time to time and provides that if an employee fails to resume duty on the expiry of the maximum period of leave admissible and granted to him or if an employee who is granted leave is absent from duty for any period exceeding the limit upto which he could have been granted leave, he shall be removed from the service unless the Govt. Decides otherwise in the exceptional circumstances of any particular case. The services of employees who had not put in more than three years’ continuous service are liable to be terminated at any time under rule 6 for unsatisfactory work or for any administrative reason. The rules also indicate the nature of penalties which may be imposed on an employee and the procedure for imposing them. A right of appeal is provided against an order imposing many of the penalties on the employee. Various other conditions of service are also provided in these rules.
It is thus clear that an extra departmental agent is not a casual worker but the holds a post under the administrative control of the State. It is apparent from the rules that the employment of an extra departmental agent is in a post which exists “apart from” the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no doubt it is a post under the State. The tests of a civil post laid down by this Court in Kanak Chandra Dutta’s case (supra) are clearly satisfied in the case of the extra departmental gents.
For the appellants it is conducted that the relationship between the Postal authorities and the extra departmental agents is not of master and servant, but really of principal and agent. The difference between the relations of master and servant principal and agent was pointed out by this Court in Lakshiminarayan Ram Gopal and Son Ltd. v. The Government of Hyderabad. (2) On page 401 of the report the following lines from Halsbury’s Laws of England (Hailsham Edition) Volume-I, at page 193, article 345, were quoted with approval in explaining the difference;
“An agent is to be distinguished on the one hand from a servant, and on the other an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given him in the course of his work, an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified results employing his own means to produce that result. An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent, as such is not a servant, but a servant is generally for some purposes his master’s implied agent, the extent of the agency depending upon the duties or position of the servant”.
The rules make it clear that these extra departmental agents work under the direct control and supervision of the authorities who obviously have the right to control the manner in which must carry out their duties. There can be no doubt therefore that the relationship between the postal authorities and the extra departmental agents is one of master and servant. Reliance was placed on behalf of the appellants on two decisions, one of the Orissa High Court Venkata Swamy v. Superintendent, Post Offices (3) and the other of the Madras High Court V. Subbaravalu v. Superintendent of Post Offices (4) The Judgements in these cases were rendered before the elaborate rules governing the conduct and service of these extra departmental agents were brought into operation in 1964. We do not therefore think an examination of these two decisions will be relevant of useful for disposing of the appeals before us.
The appeals are accordingly dismissed with costs, one set of hearing fee, in respect of all the appeals excepts CA 1172 of 1972, CA 1751 of 1972 and CA 2275 in 1972 in which separate orders as to costs were made earlier.
Dated ; 22-4-1977 Sd/- M.H.Beg CJ.
Sd/- A.C. Gupta J.
Sd/- P.S. Kailasam J.
ADVOCATES ON RECORD
For the Appellants in all Mr. Girish Chandra.
For Respondent in C.A. Mr. N. Sudhakaran.
For Respondents in CAs Mr. K.M.K. Nair.
1354, 1751/72 and 1300
For Respondent in CAs Mrs. S. Gopala Krishnan.
For Respondents in CAs Mr. K. Jayaram.
1866-67, 1015/73 and
1865 of 1974 and 506/76.
For Respondent in CA Mrs. Veena Devi Khanna.
For Respondent in CA Mr. C.S.S. Rao.
Sr. No. 129.
1. (1979) I. S.C.R. 679 (682)
2. (1955) I.S.C.R. 393
3. AIR 1957 Orisssa 112.
4. AIR 1961 Madras 16 6.