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2008 DIGILAW 668 (ORI)

Aarasada Surya Mouli v. Union of India

2008-08-08

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT I. MAHANTY, J. — The petitioner-Arasada Surya Mouli, in this writ application, has sought to challenge the order dated 12.7.2000 passed by the Central Administrative Tribunal, Cut¬tack in O.A. No.558 of 1995 whereby the Tribunal has dismissed his challenge to the order dated 2.9.1995 passed under Rule-6 of the E.D.A. (Conduct & Service) Rules, 1964 terminating the serv¬ices of the petitioner as an EDD Agent of Rayagada Head Post Office just after expiry of one and half months from the date of issue of Notice to that effect. 2. The petitioner had worked under the Postal Department as an ED Mail Escort in the Bus route from Rayagada to Jeypore for about nine years from 1.8.1976. It appears that a post of EDD Agent fell vacant in Rayagada Head Post Office and the name of the petitioner along with five others were recommended by the Employment Exchange for the said post. On verification of neces¬sary documents, the petitioner was selected for the post and he joined as such on 30.4.1994. After about one and half years of his joining, he was received with a Notice informing him that his services shall stand terminated after one month of receiving the Notice as his appointment was found to be irregular. Learned counsel for the petitioner asserted that the peti¬tioner had passed H.S.C. examination from the Andhra Board of Secondary Education in the year 1970 and he has secured 40% marks whereas the minimum requisite qualification for the post of EDD Agent is VIIIth standard. The petitioner had made a representa¬tion on 6.9.1995 against the Notice of termination to which the Opp.parties had stated that since he has not secured highest marks, his selection is found to be irregular. Learned counsel further asserted that the High School Certificate Examination passed by the petitioner was after completing 11th Class, whereas the other candidates are mere matriculates and further, the selection was made by giving weightage to the nine years of service rendered by him to the Postal Department. It is further asserted that under the pressure of the Employee’s Union, Opp.party No.3 took steps for removing the petitioner from serv¬ice. According to him the order of termination was issued without affording the petitioner an opportunity of hearing and without conducting any inquiry. It is further asserted that under the pressure of the Employee’s Union, Opp.party No.3 took steps for removing the petitioner from serv¬ice. According to him the order of termination was issued without affording the petitioner an opportunity of hearing and without conducting any inquiry. It was contended that except the peti¬tioner no body else was considered suitable for the post having nine years experience in Postal Department. It was further con¬tended that respondent No.3, the reviewing authority, had issued letter to respondent No.4 directing him to terminate the peti¬tioner’s appointment. The petitioner’s contention before the Tribunal was that his appointing authority was the respondent No.4 i.e. the Head Post Master, Head Post Office, Rayagada, he alone could have taken a decision on the question of terminating his service, but since respondent No.4 had, in fact, issued the letter of termination in terms of the direction/opinion of respondent No.3 i.e. Senior Superintendent of Post Offices, the order must be treated as effectively being an order by respondent No.3 having been commu¬nicated by respondent No.4 and therefore, ought to be declared illegal. Learned counsel for the petitioner further submitted that the order of the Tribunal passed in O.A. No.558 of 1995 was relied upon by the Postal Department in a matter before the Central Administrative Tribunal, Madras and the Full Bench of CAT, Madras disposed of that matter and in the said judgment in the case of R. Jambukeswaran and others v. Union of India & others, was reported in A.T. Full Bench Judgments 2002-03 at page-200. In the said Full Bench judgment, the Postal Department referred to the impugned judgment in support of their action and the Full Bench dealt with the matter in that judgment in the following manner : “28. Strong reliance was placed on the decision of the Cuttack Bench of this Tribunal in the case of Sri Arvinda Sourya Mouli v. Union of India and others, in OA No.588/1995 rendered on 12.7.2000. This Tribunal proceeded on erroneous presumption that under Article 311 of the Constitution, the higher authority can act, but that is not the question before us. The question of controversy was as to if relevant rules have been so framed. This Tribunal proceeded on erroneous presumption that under Article 311 of the Constitution, the higher authority can act, but that is not the question before us. The question of controversy was as to if relevant rules have been so framed. Such a power could be exercised or not.” Learned counsel for the petitioner asserted that the Full Bench of Madras Tribunal also took note of the fact that the Department of Posts, Gramin Dak Sevaks (Conduct and Employment) Rules, 2001 replaces the earlier Rules of 1994 (which was in operation at the relevant time) and in the year 2002, 2001 Rules were amended giving the superior authority the power to act in such matter. Therefore, under the 1964 Rules, it was only the appointing authority who could take any action against an employ¬ee and in the present case, since the order of the appointing au¬thority was effectively dictated by his superior authority, i.e., the Reviewing Authority it must be held that such order was otherwise unlawful. 3. Learned counsel on behalf of the Union of India submitted that in the present case, the order of termination was issued by the appointing authority and not the Reviewing Authori¬ty and, therefore, the judgment cited by the petitioner is of no relevancy. We are no inclined to accept such a submission in view of the fact that the letter of termination though issued by the Head Postmaster, i.e., Appointing Authority, clearly indicates that he had acted in compliance of the direction issued to him by the Sr. Superintendent of Post Offices (Reviewing Authority) and, there¬fore, the order of termination has to be deemed to be an order of the Reviewing Authority communicated through the appointing authority and not an order of the appointing authority. 4. The view expressed by the Full Bench of the Central Administrative Tribunal, Madras has been reiterated by the Hon’¬ble Supreme Court in the case of Union of India & Others v. Bikash Kuanar, (Civil Appeal No.4388 of 2006, decided on 10.10.2006). In the aforesaid judgment, the Supreme Court affirmed the order of the Orissa High Court whereby the Orissa High Court had set aside the order of the Central Administrative Tribunal passed in O.A. No.6 of 1999 holding that in terms of 1964 Rules, which was prevalent at the relevant time, the superi¬or authority had no statutory power to direct cancellation of selection. That judgment has been followed by this Bench in the case of the Union of India & others v. Radhashyam Sahoo and Another, (OJC No.1394 of 2000, disposed of on 05.08.2008) and the said judgment also covers the facts of the present case. 5. Accordingly, the impugned order of the Tribunal dated 12.07.2000 passed in O.A. No.558 of 1995 under Annexure-7 is quashed and in consequence thereof, the order dated 20.9.1995 under Annexure-3 is also quashed and Opp.party No.4 is directed to reinstate the petitioner to his service and permit him to resume his duty within a period of four weeks from the date of communication of this judgment. It is made clear that the peti¬tioner shall be entitled to 50% of the back wages with all serv¬ice benefits including seniority. The writ application is allowed. No costs. L. MOHAPATRA, J. I agree. Application allowed.