O R D E R
Delivered by Mr. Justice Anil Kumar Ojha, Member (J)
Heard learned counsel for the applicant, learned Sr. Standing counsel for the respondents and perused the records.
Applicant has prayed for the following relief:
(a) To issue a writ, order or direction in the nature of certiorari quashing and setting aside the impugned order dated 29.06.2016 passed by the respondent No. 4 and also quash the order dated 27.06.2016 passed by the respondent No.3 besides declared the said same order is illegal, arbitrary and discriminatory.
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(b) To re-instate the applicant forth with in service with all consequential benefits.
(c) Issue any order/direction which the Hon'ble Tribunal may deem fit just and proper in the circumstances of the case may also be passed.
(d) Award the cost of petition to the applicant. Tersely put the case of the applicant is that respondent No. 3 has issued a notification/advertisement for the vacancies of 144 Gramin Dak Sevaks (GDS) Branch Post Master including GDS BPM Ganj Jalalabad, Unnao in the year
2012.
Applicant applied for the said post. Respondent No. 4 has issued an engagement cum contract condition/proposal vide memo No. A-4/EDA/ Ganj Jalalabad/ 2013-14 dated 04.11.2013.
Respondent No. 4 on 11.11.2013 directed the applicant to submit the report of medical examination. In compliance of the direction of the respondent no.4, the applicant appeared before the Chief Medical Officer, Unnao for medical check-up. The applicant's medical check-up was done on 11-11-2013 and report was submitted accordingly to the respondent no.4 by the applicant. SDI(P) Safipur issued a letter regarding the training of the applicant from 20.11.2023 to 21.11.2023.
Later on, after acceptance of the terms & condition of the contract between employer & the applicant, the applicant was engaged on G.D.S. B.P.M. Post, Ganj Jalalabad, Unnao. The applicant performed his duties on the said post without any complaints with effect from 22.11.2013. Respondent no. 4 passed termination order dated 29.06.2016 without opportunity of hearing. Hence this OA.
Learned Counsel for the respondents filed Counter Affidavit, inter-alia, stating therein that irregular engagement of GDS BPM Jalalabad (Ganj) Unnao was made vide office OM no. A-4/EDA/Ganj/Jalalabad/13-
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14/KP(M) dated 4.11.2013 without following procedural aspect and rules provided for such engagement in cases of GDS Cadre.
In para 7 of the counter reply, it has been specifically stated that on review 8 irregularities were found. As there were serious irregularities in the procedures adopted in the appointments, the competent authority has ordered for cancellation of the engagement of the GDS BPM Ganj Jalalabad, Unnao vide his office letter No. ST/GDS BPM- CPT/ KPM/2014/ CH-IV dated 27.06.2016.
Accordingly, the engagement of the applicant was terminated vide SPOs Kanpur (M) Memo No. A- /GDS.BPM/Bharti/2014-15/Ch-IV dated 29.06.2016. OA deserves to be dismissed.
Learned Counsel for the applicant submitted that before termination, applicant has not been afforded opportunity of hearing which is against the principles of natural justice. Further submitted that in similar matters, Central Administrative Tribunal, Allahabad Bench and Central Administrative Tribunal, Lucknow Bench and Hon'ble Allahabad High Court have decided that without affording opportunity of hearing, termination order of employee deserves to be quashed.
Learned Counsel for the applicant further submitted that rule 4(3)(c) of the Department of Post, GDS Conduct and Engagement Rules, 2011 provides for opportunity of hearing which has not been followed. Hence, O.A deserves to be allowed.
Learned Counsel for the applicant relied upon the following authorities:
1. Judgment dated 19.08.2017 passed in OA 887 of 2013 by CAT Allahabad Bench.
2. CAT Lucknow Judgment dated 03.04.2017 passed in OA 523 of 2015, OA 524 of 2015, 545 of 2015, OA 49 of 2015, OA 245 of 2016, OA 246 of 2015, OA 263 of 2016, OA 264 of 2016, OA 271 of 2016, OA 284 of 2016, OA 311 of 2016, OA 356 of 2016, OA 368 of 2016, OA 369 of 2016, OA 372 of 2016, OA 377 of 2016, OA 379 of 2016, OA 380 of 2016, OA 381 of 2016, OA 400 of 2016 and 401 of 2016.
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3. Hon'ble Allahabad High Court Lucknow Bench order dated 07.03.2019 in Writ No. 21729/2017.
4. CAT Allahabad order dated 08.03.2022 in OA 454 of 2020, OA
456 OF 2020, OA 457 of 2020, OA 558 of 2020.
5. Hon'ble Allahabad High Court order dated 30.04.2018 passed in Writ No. 49864 of 2017.
Per contra, learned counsel for the respondent submitted that as per the Section 8 of the Service Rules for Postal Gramin Dak Sevak, there is no need to give notice in writing before termination if Sevak has not completed 3 years of service. The order passed by the competent authority is well within four corners of law. OA is liable to be dismissed.
Before adverting to the merits of the case rule 4 and rule 8 of Service Rules for Postal Gramin Dak Sevak are quoted below:
4. Recruiting Authority
(1) the recruiting Authority in respect of each category of Sevak shall be as shown in the Schedule annexed to these rules.
(2) If any doubt arises as to who is the appropriate Authority in any case, the matter shall be referred to the Government, whose decision thereon shall be final.
(3) Nothwithstanding anything contained in these rules, any authority superior to the Recruiting Authority as shown in the Schedule, may, at any time, either on its own motion or otherwise call for the records relating to the engagement of Gramin Dak Sevaks made by the Recruiting Authority, and is such Recruiting Authorityy appears-
(a) to have exercised a jurisdiction not vested in it by any law or rules time being in force; or
(b) to have failed to exercise a jurisdiction so vested ; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, such superior authority ma, after giving an opportunity of being heard, make such order as it thinks fit.
8. Termination and engagement
(1) The engagement of a Sevak who has not already rendered more than three years' continuous service from the date of his engagement shall be liable to be
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terminated at any time by a notice inn writing given either by the Sevak to the Recruiting Authority or by the Recruiting Authority to the Sevak;
(2) The period of such notice shall be one month:
Provided that the service of any such Sevak may be terminated forthwith and on such termination, the Sevak shall be entitled to claim a sum equivalent to the amount of Basic Time Related Continuity Allowance plus Dearness Allowance as admissible for the period of the notice at the same rates at which he was drawing them immediately before the termination of his service, or, as the case may be, for the period by which such notice falls short of one month. It is admitted position that termination order has been issued without affording opportunity of hearing or without issuing notice to the applicant.
In writ-A No.49864/2017, Union of India & Ors Vs Archana Mishra and connected cases (61 cases) Division Bench of the Hon'ble High Court has held that applicant/respondents have been terminated with reference to rule 8 of 2011 by Appointing Authority but the said order have been passed in furtherance of order/direction given by the superior authority, noticing some irregularities in appointment of GDS by exercising power under rule 4(3). The mere fact that in termination order except one reference of orders of superior authorities are not there but this is an admitted fact by petitioner that appointments were reviewed by Senior authorities and finding irregularities, directions were issued and thereafter appointing authority issued orders of termination simplicitor, therefore, the manner in which orders of termination simplicitor have been passed is nothing but a camouflage so as to avoid specific requirement of compliance of natural justice enshrined under rule 4(3) of rules 2011.
The relevant portion of the aforesaid judgment is quoted below:
34. The proposition advanced above cannot be disputed and we find no reason to take a different view in the matter. However, here the fact situation is different. Applicant- respondents have been terminated with reference to Rule 8 of Rules by Appointing Authority but admittedly, said orders have been passed in furtherance of orders/directions given by Superior Authority, noticing some irregularities in appointment of Gramin Dak Sevaks, by exercising power under Rule 4(3). The mere fact that in termination orders, except a few one, reference of orders of Superior Authorities is not there but this
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is an admitted fact by petitioner that appointments were reviewed by Superior Authorities and finding irregularities, directions were issued and thereafter Appointing authority issued orders of termination simplicitor, therefore the manner in which orders of termination simplicitor have been passed is nothing but a camouflage so as to avoid specific requirement of compliance of principles of natural justice, enshrined under Rule 4(3) of Rules 2011. Hence, the aforesaid exposition of law laid down in Paras Nath Pandey Vs. Director, North Central Zone, Cultural Center (supra) has not application to the facts of present writ petitions.
35. We find that termination orders passed by Appointing Authority are in the backdrop of directions/orders of Superior Authority, noticing some irregularities etc. in appointments of Gramin Dak Sevaks and in view of non-compliance of Rule4(3) i.e. opportunity of hearing to concern Gramin Dak Sevaks, the same are vitiated in law.
36. In view of above discussion, we do not find any manifest error in judgments of Tribunal warranting interference. It is always open to petition to pass fresh orders after complying with the requirement of Rules. Hench, we find no valid reason to interfere with judgments of Tribunal, impugned in all these writ petitions.
37. Writ petitions, for the reasons discussed above, lack merit and are dismissed, accordingly. No costs.
From the perusal of the impugned order dated 29.06.2016 which is annexure A-1 of the O.A, it is manifest that order of termination has been passed at the instructions of superior authority. The relevant portion of the termination order dated 29.06.2016 is reproduced below:
The appointment file of GDS BPM Ganj Jalalabad BO (Ganj Moradabad) Unnao has been reviewed by the competent authority in the office of Post Master General Kanpur and some serious irregularities have been found in the procedure adopted in the said appointment. The competent authority has ordered for cancellation of the said appointment with immediate effect vides his letter No. ST/GDS- BPM/CPT/KP(M)/2014/3/Ch-IV dated 27.06.2016.
In pursuance of the provision under Rule 8(2) of GDS (Conduct & Engagement) rules 2011, the services of Shri Sanjay Kumar GDS BPM Ganj Jalalabad BO (Ganj Moradabad) Unnao are hereby terminated with immediate effect.
The due amount of basic Time related continuity allowance plus dearness allowances as admissible are being remitted to Shri Sanjay Kumar in lieu of the notice of one month.
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From the perusal of the aforecited termination order dated 29.6.2016, it is manifest that termination order has been issued on the direction of competent authority in the Office of Post Master General, Kanpur (Nagar).
It has also been stated in the order that competent authority has ordered for cancellation of the order of appointment of the applicant.
Accordingly, the ratio laid down by the Hon'ble High Court in Writ-A No. 49864 of 2017, Union of India Vs Archana Mishra and connected cases (61 cases) vide judgment dated 30.04.2018, fully applies to the facts of the present case.
Hence impugned order deserves to be quashed. Accordingly, OA is allowed.
Order dated 29.06.2016 is quashed.
It is open to the respondents/competent authority to pass fresh orders after complying with the requirement of the rules.
It is made clear that we have simply taken into consideration the legal aspects of the matter and have not given any findings as to the factual aspects of the case. Competent authority is free to take any decision as per the merit of the case by following procedure prescribed in the Department of Post, GDS Conduct and Engagement Rules,
2011.
With the above directions the OA is disposed of. There shall be no order as to costs. (Devendra Chaudhry) (Justice Anil Kumar Ojha) Member (A) Member (J)
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