B HARI NAIK v. DEPT OF POSTS

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toto. The inquiry was completed, wherein all the Articles of Charge were held to be proved and a punishment of Compulsory Retirement was imposed upon the applicant by the Disciplinary Authority vide Impugned Order dt. 30.10.2017. Thereafter, the applicant preferred an Appeal dt. 12.11.2017 to the 3^rdRespondent. In the meantime, the applicant moved to the Hon'ble National Commission for Scheduled Tribes, New Delhi vide Representtion dt. 26.09.2018. The Hon'ble Commission passed the following Order on 14.03.2019:

"7. The Director of Postal Services submitted that on the basis of one complaint of irregularities in recruitment of Grameen Dak Sevak and non issuing of recruitment notification to designated authorities, a charge sheet was issued against the petitioner. Thereafter, on the proving of the charges, the Disciplinary Authority awarded punishment of compulsory retirement. The petitioner's appeal is also pending before the Appellate Authority.

8. The case was discussed in detail. The Commission observed that it is a case of clear cut discrimination and atrocity against the Scheduled Tribe employee. The Commission noted that there was a flaw in the Departmental inquiry as the complaint was anonymous and the said complaint was not verified from the complainant during the inquiry. The petitioner's defence documents were not taken into consideration. The recruitment notification was also withdrawn immediately and there was no loss to the Department. In addition, the Department of Posts has awarded harsh punishment to the scheduled tribe petitioner which is not commensurate in proportionately with the nature of misdemeanor. The Commission therefore, recommends that:

-The Post Master General, Telangana Circle who is the Appellate Authority, where his appeal is pending should decide the petitioner's appeal favourable within 7 days and he should be restored with all consequential benefits. -The Department of Posts should ensure that no injustice should be meted out against the Scheduled Tribe petitioner. -An action taken report on the Commission's

recommendations should be submitted to the Commission within 10 days from the receipt of the proceedings.

II) On receipt of the above orders, the Respondent No.3, vide Order dt. 26.03.2019, disposed of the Appeal of the applicant dt.

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12.11.2017, directing to reinstate the applicant with all consequential benefits. The Appellate Authority modified the penalty from 'compulsory retirement' to that of ""Reduction of Pay of the Applicant by three (3) stages for five (5) Years from the Stage of Rs.50,500/- in Pay Matrix Level- 7 (Cell 5) to the Stage of Rs.46,200/- in Pay Matrix Level-7 (Cell-2) with a further direction that the Applicant will not earn increments during the period of reduction and that on the expiry of this period the reduction will have the effect of postponing the future increments of pay. It is also further directed that the applicant will regain his seniority by treating the period between the date of his compulsory retirement to the date of reinstatement as period spent on duty only for the pensionary purposes, i.e., it will not constitute as break in service for calculating pensionary benefits at the time of his retirement. But, for all other purposes, the period of absence from the date of compulsory retirement to date of reinstatement will be treated as non-duty and he will not accrue any increment, back wages etc., He is at liberty to deposit subscription towards NPS for the period of his compulsory retirement to date of his reinstatement so that pensionary benefits remain unaffected as per NPS applicable to him." Aggrieved over the same, the applicant made Revision Petition dt. 16.11.2019 to the Respondent No.2. At this stage, the Respondent No.1 issued Notification dt. 18.10.2019, inviting applications for LDCE for promotion to the cadre of Postal Service Group-B. It is submitted that the applicant fulfils all the conditions of eligibility, including essential qualification for the said LDCE, except the condition of completing the eligible service as Inspector Posts due to non-consideration of absent period from 02.11.2017 to 31.03.2019 on account of the punishment of compulsory retirement to the

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date of reinstatement on 01.04.2019 with reference to his date of joining in Inspector Posts cadre on 07.02.2013. If the continuity of service from 07.02.2013 is taken into consideration, the applicant will be eligible for the LDCE. Therefore, by way of this present OA, the applicant is challenging the Order dt. 26.03.2019 of the Appellate Authority.

III) This Tribunal, vide Interim Order dt. 20.12.2019, directed the respondents to permit the applicant to participate in the LDCE Examination for promotion to the cadre of P.S. Group 'B' scheduled to be held on 19.01.2020 and the result of the applicant shall be subject to the outcome of the OA. The applicant's counsel prayed to allow the OA.

3. I) After Notices were issued, the respondents have appeared through their counsel and filed reply, opposing the relief. It is submitted that the applicant was promoted to the cadre of Inspector Posts(IP) from Postal Assistant cadre and he joined as IP, Mulug Sub Division under Hanamkonda Division on 07.02.2013. Later, he was transferred as IP, Huzurnagar Sub Division under Suryapet Division on 08.08.2014. He was later transferred as IP (Public Grievances), Office of Senior Superintendent of Post Offices, Nizamabad Division on 28.04.2015. While working as IP (PG), in the office of the 5^thRespondent, he was proceeded under Rule-14 of CCS(CCA) Rules, 1965 vide 5^thRespondent Memo dated 24.07.2015 for his lapses in deviating from the procedure in vogue, in respect of recruitment to GDS posts and for not forwarding the notifications issued in respect of seven (7) GDS posts in Huzurnagar Sub Division under Suryapet Division to the concerned in registered letters for giving wide publicity. After conducting detailed inquires as envisaged in rules, proceedings in the said charge memorandum were issued by 4^thRespondent, the Disciplinary

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Authority, vide Memo dated 30.10.2017 and the applicant was awarded the punishment of compulsory retirement from Service with immediate effect. The applicant was compulsory retired from service w.e.f. 01.11.2017. Thereafter, the applicant preferred an Appeal dated 12.11.2017 to the Appellate Authority i.e., the 3rd Respondent.

II) It is submitted that, pending disposal of the appeal, the applicant approached the Hon'ble National Commission for Scheduled Tribes, New Delhi and submitted Representation dated 26.09.2018. The National Commission, vide its order dated 14.03.2019 in File No. BHN/3/2018/MPNT3/SCOTH/RU-IV, has recommended that "The Postmaster General, Telangana Circle, who is the Appellate Authority, where his appeal is pending should decide the Petitioner's appeal favourably within 7 days and he should be restored with all consequential benefits". Thereafter, The Appellate Authority vide Memo dated 26.03.2019, disposed the Appeal, taking into consideration the recommendations of the Hon'ble National Commission for Scheduled Tribes, New Delhi, duly discussing the contours of the constitutional power of the Commission and the views endorsed by the Constitutional Courts and passed orders modifying the punishment of compulsory retirement awarded to the applicant to that of "reduction of pay by 3 stages for 5 years from Rs.50,500/- in pay matrix level 7 (cell 5) to Rs.46,200/- in pay matrix level 7 (cell 2) at the time of his compulsory retirement with further direction that, he will not earn increments of pay during the period of reduction and that on expiry of this period, the reduction will have the effect of postponing his future increments of pay. He will regain his seniority by treating the period between the date of his compulsory retirement to the

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date of reinstatement as period spent on duty only for the pensionary purposes i.e., it will not constitute as break in service for calculating pensionary benefits at the time of his retirement. But for all other purposes, the period of absence from the date of compulsory retirement to date of reinstatement will be treated as non- duty and he will not accrue any increment, back wages etc. He is at liberty to deposit subscription towards NPS for the period of his compulsory retirement to date of his reinstatement so that pensionary benefits remain unaffected as per NPS applicable to him". Consequently, the applicant was reinstated into service on 01.04.2019 and he joined as IP (Office Supervisor), Office of the SPOs, Karimnagar Division.

III) At this juncture, the Respondent No.1 issued Notification dt. 18.10.2019 for Limited Departmental Competitive Examination(LDCE) for promotion to the cadre of P.S. Group- B with eligibility condition of having five years regular service from joining of IP cadre on the crucial date of eligibility for the examination of particular year. It is submitted that the applicant is not eligible to appear for the P.S. Group-B examination scheduled to be held on 19.01.2020 as the applicant joined in IP cadre on 07.02.2013, and has completed 05 years 01 month 24 days of service as on 01.04.2018 and 5 years, 10 months and 24 days of service as on 01.01.2019 i.e., the crucial date of calculation of length of service in terms of eligibility for the LDCE for promotion to the cadre of P.S. Group 'B' for the vacancies of the year 2017-18, 2018 and 2019. But, as per the modified punishment orders issued by the Appellate Authority, the period between the date of his compulsory retirement to the date of reinstatement is to be treated as non- duty i.e., the period from 02.11.2017 to 31.03.2019 is treated as non duty

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(total 1 year 4 months 29 days). Hence, the service of the applicant, after deduction of the non duty period as stated above, for the purpose of appearing for P.S.Group 'B' examination is 04 years 08 months and 25 days as on 01.04.2018 and 01.01.2019 i.e., the crucial date of eligibility. The applicant has not completed 5 years of service as on the crucial date of eligibility and, hence, not eligible for appearing for the P.S. Group 'B' examination scheduled to be held on 03.05.2020 for the vacancies of 2017- 18, 2018 and 2019. However, the said examination was postponed thrice and, thereafter, vide Letter dt. 28.09.2020, the exam was cancelled. The learned counsel for the respondents submitted that the applicant submitted Revision Petition dt. 16.11.2019 to the Respondent No.2, after a period of 7 months and 20 days from the date of disposal of Appeal. Further, without waiting for the disposal of the Revision Petition, he filed the present OA. Therefore, the respondents prayed to dismiss the OA.

4. Heard the learned counsels for the parties and perused the pleadings on record.

5. The learned counsel for the applicant strongly argued on the point that the punishment imposed upon the applicant is too harsh. Even though the Hon'ble National Commission for Scheduled Tribes has observed in its order that, there is discrimination against the applicant and the applicant has not been given proper opportunity to defend the matter. The respondents have framed various Articles of Charge, though they are supposed to be integrated into a single charge of non-giving of wide publicity of notification. In spite of the direction of the Hon'ble National Commission for Scheduled Tribes, though the Appellate Authority has considered the

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applicant's Appeal, the Disciplinary Authority's punishment was modified into another harsh punishment which is disproportionate.

6. On the other hand, the learned counsel for the respondents vehemently opposed the relief on the ground that the applicant's admission in the Appeal that there may not be various charges and it can be a single charge for non giving of wide publicity of notification, has to be leveled. The applicant himself in the Appeal has requested the Appellate Authority to consider imposing any other penalty, except sending him out of the Department. The learned counsel for the respondents further contended that the direction of the Hon'ble National Commission for Scheduled Tribes dt. 14.03.2019 is against the settled law. In this regard, she relied upon the following judgments;

The Hon'ble Supreme Court in the case of All India Indian Overseas Bank SC and ST Employees Welfare Association and Others Vs. Union of India Others reported in 1996(6) SCC 606 held as under:

"All the procedural powers of a civil court given to the National Commission for Scheduled Castes and Scheduled Tribes by Article 338(8) of the Constitution of India are for the limited purpose of investigating any matter under Article 338(5)(a) or inquiring into any complaint under Article 338(5)(b). The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated 4.3.1993 directing the Bank (Respondent 3 herein) to stop the promotion process pending further investigation and final verdict in the manner."

The Hon'ble High Court of Karnataka at Bangalore in the case of

Syndicate Bank Vs. National Commission for Scheduled Castes and Others (W.P. No. 14645 of 2009 [S-RES]) vide its Judgement dated 19.06.2012 has observed that :

"A reading of Article 338 and the judgement referred to above, it is clear that the first respondent-National Commission can enquire

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into the complaints and recommend the concerned authority to set- right the injustice cuased to SC and ST employees. It is further clear that the first respondent-National Commission cannot interfere with an administrative functioning of the Institutions, reversing the orders already passed and from issuing directions to carry-out certain positive Acts."

The Hon'ble High Court of Karnataka in the case of Karnataka Antibiotics and Another Vs. National Commission for SC and ST and Others reported in ILR 008 KAR 3305 held as under:

"Constitution of India Articles 338- Constitution of National Commission for Scheduled Castes and Scheduled Tribes-Power of the Commission to setaside a concluded enquiry and an order of penalty- HELD, The Second respondent being the member of the first respondent Commission is not empowered to set aside a concluded inquiry and the order of penalty and the order of Appellate Authority under Article 338 of the Constitution of India ON FACTS, HELD- The second respondent directed the third respondent to conduct a fresh inquiry, to treat fourth respondent as deemed to have been continued in service and to pay him the salary and other allowances. By this impugned direction the second respondent virtually set asides the inquiry report dated 13.6.2005, order of penalty dated 15.12.2005 and the order of appellate authority dated 27.1.2006. Therefore, the impugned direction issued by the second respondent is without power and authority."

7. It is submitted by the learned counsel for the respondents that, from the above judgments, it is clear that the National Commission for Scheduled Castes/ Scheduled Tribes constituted under Article 338 of the Constitution of India, is not vested with powers to pass binding and executable orders like a Civil Court. Further, the National Commission cannot interfere with an administrative functioning of the Institutions, reversing the orders already passed and from issuing directions to carry-out certain positive acts. Under such circumstances, the recommendations of the National Commission for Scheduled Tribes is not binding on the Appellate Authority. Thus, the contention of the applicant that instead of honoring the order of the statutory authority, the 3^rdRespondent had just modified the punishment is not tenable. The Revision Petition dated

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16.11.2019 preferred by the applicant was also disposed of by the Respondent No.2 vide Memo dt. 18/25.02.2020, rejecting the petition as time barred.

8. On a bare perusal of the Appeal of the applicant, it is clear that the applicant himself is admitting the fact that there can be a single charge for non giving of wide publicity of the notification. Further, the Appeal has been preferred by the applicant against the order of compulsory retirement passed by the Disciplinary Authority and the applicant himself has requested to consider imposing any other penalty, except sending him out of the Department. The Appellate Authority has justified the penalty imposed upon the applicant.

9. It is to be noted that, once the law has been settled by the Hon'ble Supreme Court as well as the Hon'ble High Courts, considering the issue and power of the Hon'ble National Commission for Scheduled Tribes under Article 338 of the Constitution of India, that though all the procedural powers of Civil Courts are given to the said Commission under the said Article, but for a limited purpose of investigating any matter under Article 338(5)(a) or inquiring into any complaint under Article 338(5)(b). The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of Clause(8) of Article 338 of the Constitution. The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order, directing the authorities to take any action. Further, the Commission cannot interfere with the administrative functioning of the Institutions, reversing the orders already passed and from issuing directions to carry out certain positive

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Acts. Therefore, the direction given by the Hon'ble National Commission for Scheduled Tribes is justified by the Appellate Authority, while modifying the order of penalty imposed by the Disciplinary Authority. In view of this, we do not find any merit in the matter. Accordingly, the OA is dismissed. Interim Order granted by this Tribunal on 20.12.2019 stands vacated. There shall be no order as to costs.

(VARUN SINDHU KUL KAUMUDI) (Dr. LATA BASWARAJ PATNE)

ADMINISTRATIVE MEMBER JUDICIAL MEMBER

/Ram/