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Case Number

Special Appeal No. 319 of 1965

Judges

Satish Chandra
N.D Ojha, JJ.

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Smart Summary

Judgment Summary — Satish Chandra, J.

Factual and Procedural Background

The appellant was employed in September 1954 as an Extra Departmental Agent and posted as Branch Post Master at Nahwai, Allahabad, receiving a monthly salary of Rs. 25. On 13 July 1959 the Senior Superintendent of Post Offices, Allahabad Division served a charge-sheet requiring the appellant to furnish an explanation and to show cause why, if the charges were established, he should not be removed from service and a sum of Rs. 2,005 be recovered from him. The appellant submitted an explanation on 30 July 1959. An oral hearing was fixed for 8 August 1959, but the appellant did not appear; the Superintendent decided the matter on the available materials and, finding the charges established, on 17 October 1959 passed an order removing the appellant from service and directing recovery of Rs. 2,005. The appellant's appeal to the Director of Postal Services was rejected on 6 January 1961. A writ petition in this Court was dismissed, and the appellant appealed from that dismissal to the present Court.

Legal Issues Presented

Whether an Extra Departmental Agent (specifically an Extra Departmental Branch Post Master) is a "holder of a civil post" within the meaning of Article 310 of the Constitution and therefore entitled to the protection of Article 311(2).
Whether Article 311(2) required the authorities to give the appellant a notice to show cause against the proposed punishment only after completion of the inquiry and after the inquiry officer had found the charges established (i.e., whether the combined notice served on 13 July 1959 was invalid insofar as it required the appellant to show cause against the proposed punishment before the charges had been found proved).

Arguments of the Parties

Appellant's Arguments (as advanced by Mr. K.P. Agrawal)

The appellant was a holder of a civil post under the Union within the meaning of Article 310 and therefore entitled to the protections of Article 311(2).
Article 311(2) requires that no order of removal from service be passed without affording a person an opportunity to show cause against the proposed punishment after the completion of the enquiry and after the charges are found proved.
The combined notice dated 13 July 1959 (asking for explanation and to show cause against proposed punishment) was invalid insofar as it sought a show-cause response before the charges were found proved.
Relied on Khem Chand v. Union of India (A.I.R. 1958 S.C. 300) to support the proposition that a show-cause notice must follow completion of the inquiry and findings of guilt.

Respondent's Arguments (as advanced by Mr. T.N. Sapru)

The appellant was not the holder of a civil post within the meaning of Article 310, and consequently Article 311(2) did not apply.
Reliance was placed on Ch. Venkata Swamy v. Superintendent, Post Offices (A.I.R. 1957 Orissa 112), which had held that an Extra Departmental Agent was not a holder of a civil post (the Court noted this decision was later disapproved by the Supreme Court).
It was also submitted (relying on Rule 284 of the Posts and Telegraphs Manual) that Extra Departmental Postal Agents are selected from persons with other sources of income (e.g., school masters, station masters, shop-keepers) and that the qualifications/situation in life of persons who can be selected indicated the appointment was not a civil post in the sense of Article 310.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Khem Chand v. Union of India, A.I.R. 1958 S.C. 300	Holds that after completion of an enquiry it is incumbent on the authorities to give notice to show cause against the proposed punishment.	The appellant relied on this decision to argue the combined notice of 13 July 1959 was invalid insofar as it required a show-cause response before charges were found proved; the Court recognised this principle when assessing procedural fairness under Article 311(2).
State of Assam v. K.C. Datta, A.I.R. 1967 S.C. 884	Explains the connotation of "civil post": a post on the civil side of administration; indicia include the State's right to appoint, suspend and dismiss, control work methods, and pay remuneration; whether there is a master-servant relationship is a question of fact.	The Court used the principles from this decision (as explained in the cited Supreme Court case) to determine whether an Extra Departmental Agent is a holder of a civil post and thus to decide the applicability of Article 311(2).
Mangal Datt Chaube v. Senior Superintendent of Post Offices, Writ Petition No. 473 of 1968 (decided 21 Jan 1969)	This Court applied the State of Assam v. K.C. Datta principles and analysed the Posts and Telegraphs Extra Departmental Agents (Conduct & Service) Rules to conclude such agents could be holders of civil posts.	The present Court followed the reasoning in Mangal Datt Chaube, adopting its analysis of the Rules and facts to hold that an Extra Departmental Branch Post Master is a holder of a civil post and entitled to Article 311(2) protection.
Ch. Venkata Swamy v. Superintendent, Post Offices, A.I.R. 1957 Orissa 112	Had held on the facts then prevailing that an Extra Departmental Agent was not a person holding a civil post.	The Court noted this decision was disapproved by the Supreme Court (reference to A.I.R. 1967 S.C. 884) and distinguished it on facts (an earlier rule permitting nomination of a successor during leave which no longer existed). The Court therefore rejected reliance on this case.

Court's Reasoning and Analysis

The Court's analysis proceeded by identifying the legal meaning of "civil post" as expounded by the Supreme Court in State of Assam v. K.C. Datta and as applied in the earlier decision of this Court in Mangal Datt Chaube. The crucial indicia for a civil post include:

That the post is on the civil (non-defence) side of administration;
The State's rights to select and appoint the holder, to suspend and dismiss, to control the manner and method of work, and to pay wages or remuneration;
The existence of a master-and-servant relationship between the State and the holder of the post; and
That these indicia are matters of fact to be assessed in each case.

Applying these principles, the Court examined the statutory/regulatory framework governing Extra Departmental Agents — principally the Posts and Telegraphs Extra Departmental Agents (Conduct & Service) Rules (1964) and relevant provisions of the Posts and Telegraphs Manual (1959 edition was considered). The Court noted that:

The Rules define "employee" to include an Extra Departmental Branch Post Master and specify appointing authorities and conditions of service.
Rules provide for leave, conditions of service, penalties (including removal and dismissal), procedures for imposing penalties, and rights of appeal against penalty orders.
The duties of an Extra Departmental Branch Post Master are identical to those of regular Branch Post Masters in the departmental service; the post is under the administrative control and supervision of higher departmental authorities; the holder receives a definite monthly pay; and the Government exercises the right to appoint and remove.

On these factual and regulatory foundations the Court concluded that the relationship of master and servant exists between the Government of India and an Extra Departmental Agent, and that such an agent was therefore a holder of a civil post within Articles 310 and 311. Consequent upon that conclusion, Article 311(2) applied and required that the employee be given a reasonable opportunity to make representation on any proposed penalty after findings of the inquiry. The Court found that no such opportunity was afforded in the present case and that the order of dismissal therefore violated Article 311(2) and was void and of no legal effect.

The Court additionally considered and rejected the respondent's reliance on Ch. Venkata Swamy (A.I.R. 1957 Orissa 112), noting that the Supreme Court had disapproved that view (by reference to A.I.R. 1967 S.C. 884) and that factual distinctions (such as an earlier rule permitting nomination of a successor during leave) made the earlier decision inapplicable. The Court also observed that the relevant Manual (1959 edition) did not permit nomination of a successor during leave, further undermining the respondent's argument.

Holding and Implications

APPEAL ALLOWED; IMPUGNED ORDER QUASHED IN PART

Holding:

The appeal was allowed. The Court set aside the judgment of the learned single Judge.
The impugned order dated 17-10-1959 was quashed insofar as it imposed the punishment of removal from service.

Implications and consequences:

The Court held that an Extra Departmental Branch Post Master is a holder of a civil post within the meaning of Articles 310 and 311 of the Constitution and is entitled to the protection of Article 311(2), namely a reasonable opportunity to make representation on a proposed penalty after the inquiry findings.
Because the appellant was not afforded the Article 311(2) protection, the dismissal order was void; accordingly the removal was quashed.
The respondent is left free to take appropriate proceedings and pass suitable orders consistent with law (the Court expressly permitted fresh proceedings to be taken).
The parties were directed to bear their own costs.

The opinion does not purport to state that a new principle of law is being announced beyond applying Supreme Court precedent and earlier decisions of this Court; the Court applied existing authorities (notably State of Assam v. K.C. Datta as explained in Mangal Datt Chaube) to the facts and rules governing Extra Departmental Agents and reached the conclusion described above.

Disposition: Appeal allowed.

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Jogendra Bahadur Petitioner- v. Senior Superintendent Of Post Offices, Allahabad And Others Opposite-Parties-

Satish Chandra, J.:— The appellant was in September, 1954 employed as an extra departmental agent and posted as Branch Post Master Nahwai at Allahabad on a monthly salary of Rs. 25/- per month. On 13th July, 1959 the Senior Superintendent of Post Offices, Allahabad Division served upon the appellant a charge-sheet requiring the appellant to furnish his explanation and also requiring him to show cause why in case the charges were established he should not be removed from service by way of punishment and a sum of Rs. 2,005/- be directed to be recovered from him. The appellant submitted his explanation on July 30, 1959. On 8th August, 1959 the Superintendent fixed a time, date and place for holding the oral hearing. The appellant, however, did not appear. The Superintendent proceeded to decide the matter on the existing materials. He found the charges established and on 17-10-1959 passed an order removing the appellant from service and also directing that the amount of Rs. 2005/- be recovered from the appellant. The appellant filed an appeal to the Director of Postal Services but it was rejected on 6-1-1961.

2. Aggrieved the appellant instituted a writ petition in this Court which was dismissed. Hence the present appeal.

3. Mr. K.P Agrawal, appearing for the appellant, has submitted before us only one point. He urged that the appellant was holding a civil posties under the Union within the meaning of Article 310 of the Constitution. He was hence entitled to the protection of Article 311(2) whereunder no order of removal from service could validly be passed without affording the appellant an opportunity to show cause against the proposed punishment. Learned counsel submitted that it was incumbent upon the authorities to have given a notice to the appellant to show cause against the proposed punishment, after the completion of the enquiry into the charges and after the enquiry officer found the charges established. The appellant could not adequately represent against the proposed punishment until he knew the contents of the findings in regard to the charges. The decision of the Supreme Court in Khem Chand v. Union of India A.I.R 1958 S.C 300. supports the submission. There it was held that after the completion of the enquiry, it was incumbent upon the authorities to give a notice to show cause against the proposed punishment. In this state of the law the combined notice served on the appellant on July 13, 1959 was invalid in so far as it required the appellant to show cause against the proposed punishment because till then the charges had not been found proved.

4. Mr. T.N Sapru, appearing for the respondent, countered the submission by urging that the appellant was not employed on a civil post. He was not the holder of a civil post within meaning of Article 310 of the Constitution, and Article 311(2) was not attracted.

5. This very point, namely, whether an extra departmental agent was the holder of civil post within the meaning of Article 311 of the Constitution came up for consideration before this Court in Mangal Datt Chaube v. Senior Superintendent of Post Offices Writ Petition No. 473 of 1968 decided on 21st January, 1969.. In that case one of us held.

“The true connotation of the term “civil post” as used in these Articles was explained by the Supreme Court in State of Assam v. K.C Datta A.I.R 1967 S.C 884.. It was observed that a civil post is a post on the civil as distinguished from the defence side of the administration; and employment in a civil capacity under the Union or a State. Since civil services of the Union or All India Services or a civil service of a State is mentioned separately in Articles 310 and 311 of the Constitution, a civil post would mean a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under the State is a person serving or holding the post under a State. The heading and the sub-heading of Part XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and the person said to be holding a post under it. It then held:—

“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 is wages or remuneration. A relationship of master and servant may be established by the presence of all or some these indicia, in conjunction with other circumstances and it is a question of fact each case whether there is such a relation between the State and the alleged older of a point.”

The Court then went on to hold that a ??? is an office or a position to which ??? in connection with the affairs of the ??? are attached; an office or a position ??? which a person is appointed, and, which ??? exist apart from and independently ??? the holder of the post. A post may be ??? before the appointment or ??? with it. A post under the State ??? a post under the administrative control of the State. The State may create ??? abolish the post and may regulate the conditions of service of person appointed ??? the post. It was also observed by the supreme Court that the fact that the post ??? not carry a definite rate of pay but ??? a remuneration by way of a commission, or the fact that the post may not ??? a whole-time employment, would ??? detract from the employment being to ??? civil post.

6. Judged in the light of these principles, an Extra Departmental Agent ??? in my opinion be the holder of a ??? post. These Agents are governed by ??? rules called the Posts and Telegraphs Extra Departmental Agents (Conduct ??? Service) Rules, 1964, framed by the Government. Under it an employee has been defined to mean a person employed ??? an Extra Departmental Agent. Such ??? agent means 17 kinds of posts including ??? Extra Departmental Branch Post Master. The petitioner was appointed ??? this post. Under Rule 3 the appointing authority in respect of each category ??? employees is as shown in the Schedule convexed to the Rules. Under Rule 5 the employee shall be entitled to such leave as ??? be determined by the Government ??? time to time. Rule 6 deals with ??? of service of such an employee. Under Rule 7 penalties including removal ??? “service” and dismissal from “service” can be imposed on an employee for good and sufficient reasons. Rule 8 prescribes the procedure for imposing penalties. The employee is entitled to appeal against an order imposing penalty to the authority to which the authority imposing the penalty is immediately subordinate. Rule 17 prescribes that every employee shall at all times maintain absolute integrity and devotion to duty. Under Rule 18 an employee is forbidden to be a member of, or associated with any political party or from taking part in any political movement or activity. Rule 19 prohibits an employee from resorting to any sort of strike in relation to his conditions of “service”. Under Rule 24 no employee shall except with the previous sanction of the Government have recourse to any court or to the press for the vindication of any official act which has been the subject-matter of adverse criticism or an attack of defamatory character.

7. From the affidavits filed in this case it appears that the duties of an Extra Departmental Branch Post Master are identical to any other Branch Post Master who is employed as a member of the regular service of the Posts and Telegraphs Department of the Government of India. It is thus clear that the post of an Extra Departmental Branch Post Master is under the administrative control of the Union, and is a post to which the duties in connection with the affairs of the Union are attached. The specified officers of the Government have the right to select and appoint the holder of the post. The Government has the right to remove or dismiss him from service. It is apparent that the Branch Post Master has to do his duties under the control and supervision of the higher departmental authorities. He draws a definite rate of monthly pay. He is a public servant entrusted with the duty to do official acts in relation to the affairs of the Union. It is in my opinion evident that a relationship of master and servant exists between the Government of India and an Extra Departmental Agent. Such an employee is hence the holder of a civil post within meaning of Articles 310 and 311 of the Constitution. He is entitled to the protection of Article 311(2). Under it such an employee is entitled to a reason, able opportunity of making representation on the penalty proposed to be awarded. No such opportunity was admittedly afforded to the petitioner. The order of dismissal violated Article 311(2) of the Constitution and was consequently void and of no legal effect.

8. For the respondents reliance was placed upon Ch. Venkata Swamy v. Superintendent, Post Offices A.I.R 1957 Orissa, 112.. There it was held on a consideration of the relevant conditions of employment then prevailing, that an Extra Departmental Agent was not a person holding a civil post. That case was disapproved by the Supreme Court in A.I.R 1967 S.C 884 referred to above. Further, it appears that at that time one of the rules provided that if an Extra Departmental Branch Post Master goes on leave he could himself nominate his successor for the duration of his leave. No such rule exists now. That case, therefore, is distinguishable.

9. It was also submitted that under Rule 284 of volume 284 of the Posts and Telegraphs Manual a Branch Post Office should be placed in charge of an Extra Departmental Postal Agent such as School Masters, Station Masters, Shop-keepers, land-owners and pensioned servants of Government who have sources of income. School Masters, Station Masters and others who are paid servants are not to be appointed as Extra Departmental Postal Agents without the previous consent of their superior officers or the employers as the case may be. The police officer who is not a pensioner is not to be employed as Extra Departmental Postal Agent without the previous sanction of the Director General of Postal Services. On the basis of this rule it was suggested that an Extra Departmental Postal Agent is not a civil post but an employment otherwise than on a civil post. The qualifications or the situation in life of the persons who can he selected by the Government to a particular post would not be relevant or material to the question whether the employment ??? on a civil post within the meaning ??? Article 310 of the Constitution. The concept of a civil post under Article 310 of the Constitution has been explained by the Supreme Court in the case referred ??? above. The fact that the post is create ??? or abolished by the “Government at in choice, that it has a right to make an appointment to it, the fact that the post carries duties relating to the administration of the Government, coupled with the fact that there exists a relationship of ??? and servant between the Government and the holder of the post, clearly establish that Extra Departmental postal Agent is civil post.”

10. In this case reference has been made to the 1964 Edition of the Rules. We have ??? the 1959 Edition of the Manual. Then also no rule permits the agent to nominate his successor during a leave vacancy. We are in agreement with the view taken in this case. The appellant was holding ??? Civil Post. There being a clear breach ??? Article 311(2) the order of dismissal can not be sustained.

11. In the result, the appeal succeed and is allowed. The judgment of the learned single Judge is set aside. The impugned order dated 17-10-1959 in so far as it imposed upon the appellant the punishment of removal from service quashed. It will, however, be open to the respondent to take appropriate proceeding and pass suitable orders. Under the circumstances, the parties shall bear the own costs.

Appeal allowed.

Jogendra Bahadur Pet... v. Senior Superintenden...