Alok Shukla vs Union Of India & Ors

Om Prakash-Vii, Member (J)

By means of present O.A., the applicant has sought the following reliefs:-

“(i) To issue an order, rule or direction for quashing and setting aside the impugned order dated 07.08.2014 by which the appointment of the applicant on the said post of GDS BPM Talgaon, Nigohi, Shahjahanpur has been reviewed and cancelled by the respondents No. 3.

(ii) To issue an order, rule or direction for quashing and setting aside the impugned order dated 08.01.2015 passed by the respondents by which the respondent No. 4 has terminated the services of the applicant from the post of GDS BPM Talgaon, Nigohi, Shahjahanpur.

(iii) To issue an order rule or direction directing the respondents to allow the applicant to work on the said post and pay the monthly TRCA as and when due.

(iv) To issue an order rule or direction directing the respondents to make the payment of full TRCA including the arrears from the date of termination till the date of reinstatement in favour of the applicant as paid in respect of the similarly situated employee.

(v) To issue an order rule or direction, which this Hon’ble Tribunal may deem fit and proper under the facts and circumstances of the case to which the applicant may be found entitled under law.

(vi) To award the cost of the original application may also be awarded in favour of the applicant”.

The brief facts as mentioned in the O.A. are that the applicant, in pursuance of an open advertisement dated 23.11.2011, applied for the post of GDS BPM, Talgaon, Nigohi, Shahjahanpur and he was selected and issued the appointment letter on 02.01.2012 (copy of the appointment letter has been annexed as Annexure No. A-6 to the O.A.), which is quoted below:-

“In pursuance of SDO, Shahjahanpur Memo No. A/GDS/Rectt/Talgaon/2011-12 dt 2.1.2012, Shri Alok Shukla, S/o Shri Yash Dutt Shukla who has been appointed as GDS BPM Talgaon (Nigohi) is hereby ordered to undergo training of GDS BPM as per following schedule:-

Sl. No.

Date and Time

Place of Training

Training by

1.

5/1/2012 to 6/1/2012 (10.00hrs to 1700 hrs)

A/o ASP (Central Shahjahanpur

ASP (c) and Mail OC

2.

7/1/2012 and 9/1/2012 (10.00hrs to 1700 hrs)

Nigohi SO

SDM Nigohi

Compliance may be ensured”

The applicant assumed charge as GDS BPM at Talgaon on 09.1.2012 and started performing his duties to the satisfaction of his senior authority. During his working on the post of GDS BPM Talgaon, Nigohi, Shahjahanpur, the respondent NO.4 vide order dated 04.10.2012 has provisionally attached the applicant on the post of GDS BPM Dakhana, Lahiya Kutar, Shahjahanpur by order dated 22.04.2013 and the applicant worked on the said post also However, all of sudden vide order dated 08.01.2015, issued by Respondent No.4), his services were terminated. The aforesaid order has been challenged and impugned in the instant OA. For ready reference, it is reproduced as under;-

“In compliance of R.O. Bareilly Memo No. RPB/Vig/Misc.-1A/07/2012 dated at Bareilly the 07.08.2014 and In pursuance to the proviso to Rule 8(1) & (2) of the Department of Post, Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011, I S.K. Trivedi, Superintendent of Post Offices hereby terminate the engagement of Shri Alok Shukla, GDSBPM, Talgaon, Nigohi (Shahjahanpur) presently attached to GDSBPM Dhakhan Lahia BO, Khutar (Shahjahanpur) with immediate effect and direct that he shall be entitled to claim a sum equivalent to the amount of his basic allowance plus dearness allowance for the period of notice at the same rates at which he was drawing them immediately before the termination of his engagement or, as the case may be, for the period by which such notice falls short of one month. The due amount of the basic allowance plus dearness allowance is being remitted in lieu of the notice to one month or for the period by which such notice falls short of one month”.

The main ground to challenge the legality and correctness of the impugned order, taken by the applicant in the instant OA, is that no show cause notice was ever issued before terminating his engagement and no reason was assigned for terminating his engagement, therefore, the impugned order is violative of principle of natural justice. It has been vehemently contended by learned counsel for the applicant that without giving any opportunity of being heard, the services of applicant have been terminated which is a gross violation of Sub Rule 4 (3) (c) of the GDS (Conduct & Engagement) Rule 2011 which mentions:-

“Notwithstanding 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 Sewak made by the Recruiting Authority and if such Recruiting Authority 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, may after giving an opportunity of being heard, make such order as it thing fit”.

It is contended that apparently no show cause notice was issued to the applicant before the impugned order was passed, the respondents have terminated the services of the applicant without holding an enquiry and without giving him an opportunity of being heard. Therefore, the impugned order, passed in utter violation of existing Rules, being illegal, is liable to be set aside.

The respondents have filed counter affidavit justifying the passing of impugned order dated 08.01.2015. It has been stated in the counter affidavit that the appointment of the applicant was cancelled on the ground that various irregularities were noticed by the Competent Authority in the entire recruitment process. It is further stated that the decision of respondents to terminate the services of applicant under Rule 8 of GDS (Conduct and Engagement) Rules 2011 is in accordance with Rules and is justified.

We have heard Shri Avinish Tripathi, learned counsel for the applicant and Shri Shree Prakash Rai, learned counsel for the respondents and have carefully gone through the record.

Learned counsel for the applicant has argued that in identical factual situation, where the services of some of the Gramin Dak Sewaks had been terminated and the issue was agitated before this Tribunal, this Tribunal considered the grievance of the Dak Sewaks and quashed the impugned order. In support his argument, the copy of the judgment dated 14.07.2017 passed by this Tribunal in O.A No. 742 of 2016 – Birbal Vs. Union of India and others decided along with bunch of OAs, has been filed by the applicant, which shows that this Tribunal, while allowing the OAs, has held the applicants entitled to reinstatement and all the consequential benefits including full TRCA for the period they have been kept out of service. Respondents were further directed to comply with the order within a period of six weeks and to pass necessary orders for reinstatement. Accordingly, they were directed to disburse the amount of arrears of TRCA within two months from the date of reinstatement of applicants.

The respondents had challenged the aforesaid order dated 14.07.2017, before the Hon’ble Allahabad High Court by means of Writ A No. 49864 of 2017 along with other similar writ petitions. All such writ petitions were dismissed by the Hon’ble Allahabad High Court by a common order dated 30.04.2018. In support of his contentions, copy of orders dated 14.07.2017 passed by this Tribunal and 30.04.2018 passed by the Hon’ble Allahabad High Court, have been filed by the learned counsel for the applicant as Annexure A-11 and A-12.

Learned counsel for the respondents has opposed the O.A., however, he has not disputed the fact that in several similar cases, the OAs have been allowed in the same terms as OA No. 742 of 2016.

For a ready reference, operative portion of the order dated 14.07.2017 passed in OA No. 742 of 2016 clubbed with 99 other OAs, all disposed of by a common order, is reproduced below:-

“In view of the above, except the following OAs, in which pleadings are not complete, as held in para 16 above, all other OAs are allowed and orders impugned therein are hereby quashed and set aside:-

a. OAs 886/2016, (b) 32/2017, (c) 33/2017;

(d) 564/2017, (e) 565/2017, (f) 602/2017,

(g) 685/2017 and (h) 690/2017.

It is directed that the applicants are entitled to reinstatement and further they are entitled to the consequential benefits, i.e. for full TRCA for the period they have been kept out of service. If any of their places has been filled up by someone, the applicants shall be accommodated in any other vacant post and at the earliest opportunity they shall be brought back to their original post. This order shall be complied with within a period of six weeks from today. Necessary orders for reinstatement be issued accordingly. Arrears of TRCA be disbursed within two months from the date of reinstatement.

Liberty is given to the respondents to proceed against the applicants falling under category (1) and (2) above”.

Hon’ble Allahabad High Court reviewed the aforesaid order in Writ A No. 49864 of 2017 along with bunch of other writ petitions. The operative portion of the aforesaid order passed by Hon’ble Allahabad High Court is quoted below:-

“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 Rule 4 (3) i.e. opportunity of hearing to concern Gramin Dak Sevaks, the same are vitiated in law.

In view of above discussion, we do not find any manifest error in judgments of Tribunal warranting interference. It is always open to petitioners to pass fresh orders after complying with the requirement of Rules. Hence, we find no valid reason to interfere with judgments of Tribunal, impugned in all these writ petitions.

Writ petitions, for the reason discussed above, lack merit and are dismissed, accordingly. No cots”.

It is also relevant to mention here that since Union of India agitated the matter on the similar issue before the Hon’ble Supreme Court by way of Special Leave to Appeal (C) No. (s) 12311/2020, which was dismissed by the Hon’ble Supreme Court vide order dated 16.01.2020.

From the perusal of the above facts, we are of the view that since the order passed by the coordinate Bench in OA No. 330/742/2016 whereby it was declared the applicants entitled to reinstatement and further they were found entitle to the consequential benefits and the Writ Petition against the said order before the Hon’ble High Court has also been dismissed, thus, we have no hesitation to differ from the view taken by the Tribunal in the judgment and order dated 330/742/2016, which has attained finality as same have been affirmed by the judgment and order of Hon’ble High Court.

Accordingly, the present Original Application is allowed in terms of the aforesaid judgment and order passed by the coordinate Bench in OA No. 330/742/2016 and the impugned order dated 08.01.2015 is quashed. The respondents are directed to reinstate the engagement of the applicant with all consequential benefits. However, it is always open for the respondents, to pass fresh orders with regard to termination of the illegal appointments if there were serious irregularities in the procedure adopted in the said appointment but after giving the opportunity of hearing to the applicant. No order as to costs. All associated MAs are disposed of.