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)
VERSUS
UNION OF INDIA Respondent(s)
(With office report )
[FOR PREL. HEARING]
Date: 13/12/2013 This Petition was called on for hearing today.
CORAM :
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.
For Respondent(s)
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)
VERSUS
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.
......................J.
( R.M. LODHA )
....................J.
( SHIVA KIRTI SINGH )
NEW DELHI;
DECEMBER 13, 2013
==========================================
A FULL TIME CASUAL LABOURER WITH TEMPORARY STATUS OF Gr.D (GOVT. EMPLOYEE) COULD GET PENSION - CAT- BANGALORE BENCH
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)
VERSUS
SHAM DULARI & ORS. ----
Respondent(s)
Date: 07/12/2007
This Petition was called on for hearing today.
CORAM:
HON'BLE MR. JUSTICE A.K. MATHUR
HON'BLE MR. JUSTICE MARKANDEY KATJU
For Petitioner(s)
Mr. R. Mohan, ASG
Ms. Kiran Bhardwaj, Adv.
Mr. V.K. Verma, Adv.
For Respondent(s)
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.
Sd/
Sd/
(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
Versus
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.
Order
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.
May
18,2006
Sanjay
Sd/-
Sd/-
M.M.KUMAR
M.M. S. BADI
JUDGE
JUDGE
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.
versus.
Theyyam Joseph etc.
---Respondents
with
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].
and
Civil Appeal No. 2431 of 1994
ORDERS
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].
Leave granted.
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:-
(i) Censure:
(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
Leave granted.
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.
Sd/-
(K. Ramaswamy)
Sd/-
(G.B. Pattanaik)
New Delhi.
February 2,1996
P.K.RAJAMMA CASE JUDGEMENT :(SC - 1977)
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE
JURISDICTION
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.
Appellants.
Versus
P.K.Rajamma,
etc. Respondents.
and
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 &
Anr. .Appellants.
Versus
A.Surya
Rao. Respondents.
And
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.
Versus
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.
Versus
M.Kishaiah
etc. Respondent.
And
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
Versus
M.Tumbeswara
Rao. Respondent.
And
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.
Versus
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.
Versus
Gokulananda Das
Respondent
The 22nd day of April 1977
Present;
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.
C.A. 1355.
For
Respondents
Mr.K.Jayaram & Mr. K.Ram Kumar,
CAs 1866-77, 1015/73
Advocates.
& 1865 of 1974 &
506/76.
For
Respondent in
Mrs. Veena Devi Khanna,
Advocate.
CA 2275/72
For
Respondent in
Mr. C.S.Rao, Advocate.
CA 1313/76.
JUDGEMENT
The
following Judgment of the Court was delivered by;
Gupta J.
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.
the
appeals
For
Respondent in C.A.
Mr.
N. Sudhakaran.
No.
1172/72
For
Respondents in CAs
Mr.
K.M.K. Nair.
1354, 1751/72
and 1300
and
1393/76
For
Respondent in CAs
Mrs.
S. Gopala Krishnan.
1955
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.
No.
22/5772.
For
Respondent in
CA
Mr.
C.S.S. Rao.
1313/76.
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.
******
