Bishwanath Verma vs The Union of India (UOI) and Others

Ravi Nandan Sahay, J.—The Appellant, who was Plaintiff in the suit out of which this appeal arises, was appointed on 22.12.1944 as Extra Departmental Agent (Sub-Post Master) in the branch post office at Rampur Bindalal by the Superintendent of Post Offices, Gandak Division (Ext.-2). It appears that two Money Orders-One bearing No. 3525 dated 13.6.1959 for Rs. 200/-payable to one Kuber Pandit of the same village and another bearing No. 1339 dated 11.6.1959 for Rs. 100/-payable to Mannu Sah, the Appellant received the same in the capacity of Sub-Post Master. The first one was received by the Appellant on 16.6.1959 and the second one on 17.6.1959. These were shown as paid on 19.6.1959.

Kuber Pandit had sent a complaint to the Inspector of Post Offices, Chapra complaining that he had not received the Money Order which had been sent to him. The Postal Inspector made enquiries and he made a written report to the Police Station wherefrom a case was registered under Sections 409, 467/109 and also 471 of the Indian Penal Code. The Appellant was ultimately tried before the Assistant Sessions Judge, Saran. The Appellant was found guilty but on appeal his convection and sentence was set aside by the 1st Additional Sessions Judge, Chapra by judgment dated 15th January, 1965. The appellate Court honourably acquitted the Appellant by giving categoric finding that the Appellant had not committed criminal breach of trust inasmuch as he had paid the money to the persons in whose name Money Orders were addressed. The Appellant''s defence was that there were two persons in the name of Kuber Pandit. One was real Kuber Pandit and the other was Kuber Pandit @ Raghunath to whom by mistake payment was made and when the mistake was detected, Kuber Pandit @ Raghunath returned the amount on 14.7.1959. So far other Money Order payable to Mannu Sah is concerned, the payment had been made to him.

During the pendency of the criminal proceeding against the Appellant, his services was terminated by Ext. -2/b extracted below:

Office of Inspector of Post Office Saran Central Sub-Dn. Memo No. 1477/C Dated Chapra, the 2nd July, 1961.

Under Rule 6 of the P and T. E.D. Agents (Conducts and Services) Rules, 1959, the services of Shri Bishwanath Pd. Verma, E.D.A., Rampur Bindalall, is hereby terminated with effect from 11th Jan., 1960, the date on which he was put off duty.

Sd/-R. Singh Inspector of Post Office Saran Central Sub-Dn.

When the compaint lodged by Kuber Pandit against the Appellant was received the Appellant was put off from the duty on 11th January, 1960 by the Inspector of Post Offices Saran until the completion of enquiry vide Ext.-2/a. After he was acquitted in the Sessions Case, the Appellant submitted a representation to the Post Master Bihar Circle, Patna for his reinstatement. The Post Master General reviewed the case and found that although the Appellant was acquitted by the Court of appeal, he was responsible for serious laches in the payment of Money Orders and his representation was therefore rejected. The Appellant, thereafter served a notice u/s 80 CPC on the Union of India through Secretary Ministry of Transport and Communication, New Delhi, Post Master General, Bihar Patna, Senior Superintendent of Post Offices, Saran and Inspector of Post Offices, Chapra West.

The Appellant filed Suit No. 178/70 before the Court of Munsif, Chapra challenging his termination on the ground that the charges on which enquiry was held against the Appellant were found to be groundless by the Court of Sessions; that he was denied opportunity to meet the charges; the Mukhiya of the village was inimical with him because he had civil litigation with him and he instigated Kuber Pandit to file a false compaint against the Appellant and lastly that he was appointed by the Superintendent of Post Offices and his termination order was passed by the Inspector of Post Offices, who was inferior in rank to the appointing authority.

The suit was contested by the Defendants on the ground that there was no record available to ascertain as to who appointed the Appellant but the proper authority for appointment of E.D.As. was the Inspector of Post Offices and he was also the dismissing authority. It was further stated that the Plaintiff had not paid Money Orders to the payees and had misappropriated the same and it was during the course of departmental enquiry that he credited Rs. 200/- under the head unclassified receipt. As regards competency of the Inspector of Post offices for terminating the services of E.D.As. the Inspector of Post Offices was quite competent to terminate the services of the Plaintiff without observing any formalities and the services of the Plaintiff were terminated long before the termination of the criminal case. It was asserted that according to Rule 6 of P and T E.D. Agents Service and Conduct Rules, the services of an E.D. Agent can be terminated at any time without assigning any reason and the Plaintiff''s services were terminated by the Inspector of Post Offices in accordance with the aforesaid Rule.

Learned Munsif non suited the Appellant and his decree was confirmed by the appellate Court. Learned Munsif held that though the Appellant was appointed by the Superintendent of Post Office, but by subsequent amendment of Rule, the Inspector of Post Office was vested with the power of appointing authority and as such he was competent to terminate the services of the Appellant and there was no violation of Article 311(1) of the Constitution of India. Learned Munsif also held that the suit was barred by limitation.

Learned Additional District Judge dismissed the appeal more or less on similar findings. The appellate Court held that protection with regard to Article 311 of the Constitution of India is not extended to E.D. Agents as the rule contained in Schedule IB of the P.T. Manual Vol.II have been superseded by the P.T. Agents (Conduct and Service) Rules.

This appeal was admitted on the question as to whether in view of the fact that the Appellant was appointed by the Superintendent of Post Offices as an Extra Departmental Agent, whether his services could have been terminated by the Inspector of Post Offices, Saran Central Division.

Learned Counsel for the Appellant has submitted that the judgments of the Courts below is absolutely erroneous. It has been settled by the Supreme Court in The Superintendent of Post Offices and Others Vs. P.K. Rajamma, and AIR 1967 S.C. 887 that Extra Departmental Agents are Central Servants of Union of India and they are governed by Article 311 of the Constitution of India. If this contention is accepted, then the termination of the Appellant was unconstitutional on the face of it because no departmental enquiry was held, no opportunity was given to the Appellant to meet the allegations. Even otherwise also, since the Appellant was appointed by the Superintendent of Post Offices, his termination by the Inspector of Post Offices who is inferior in rank to the Superintendent of Post offices was patently illegal and subsequent amendment in the Rules cannot rescue the Respondents. It has also been alleged that the Courts below have not properly appreciated the scope and ambit of Rule 6 of E.D.A. (Conduct and Services) Rules, 1959.

Learned Counsel for the Respondents has submitted that the decision of the Supreme Court relied upon by the Appellant has no application because the decision relates to amended rules which came in 1959 after the appointment of the Appellant. The Rule was interpreted by the Orissa High Court. Orissa High Court held that under those rules Extra Departmental Agent cannot be terminated as they are Central Servant of Union of India.

The rule which governs the Appellants''s service condition was Rule 3 of Schedule 1-B of P and T Manual Vol. III which provided that no order imposing a penalty specified in the preceding rule i.e. Rule 2 ibid other than on removal from service for unsatisfactory work or for doubtful character or an order based on facts which have led to his conviction in a Court of law, shall be passed against an employee unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed. Rule 7 of the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1959 lays down that services of such employees shall be liable to termination by the appointing authority at any time without notice and without assigning any reason. The Director General, Post and Telegraph opined vide Ext.-A/1 that the rule contained in Schedule 1-B of the P and T Manual. Vol III so far as they relate to E.D. Agents have been superseded by the P and T E.D.Agents (Conduct and Service) Rules, 1959. In the new rules, there is no provision for taking disciplinary action against E.D.Agents. Their services can, however, be straightway terminated under Rule 6 of the rules. Care should, however, be taken to ensure that no reasons are mentioned in the orders in support of the action taken.

The service of the Appellant was terminated under Rule 6 of the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1959 which reads as follows:

The service of the employees shall be liable to termination by the appointing authority at any time without notice and without assigning any reason.

The Appellant was appointed by the Superintendent of Post Offices. The appointment letter of the Appellant is Ext-2 which is extracted below:

INDIAN POSTS AND TELEGRAPHS DEPARTMENT Office of the Superintendent of Post Offices

Gandak Division Memorandum No. A-183 Dated Motihari 18.6.1948

Mr. Bishwanath Prasad Verma whose full particulars are noted below and who has furnished the requisite F. Bond of the National Insurance Co. Ltd. Calcutta is hereby appointed as E.D.A Rampur Bindalal with effect from the date of taking over charge of the office on an allowance of Rs. 10/-

Father''s name :- Babu Kedar Nath Verma.

Vill and P.O. :- Rampur Bindalal.

Caste :- Kayastha.

Educational Qualification :- Non Matric.

Age :- 26 years.

Value of landed properties in his name and verified by the Revenue authorities :- 100000/-

Monthly income from landed properties and other sources :- Rs. 67/-

Height :- 5.7"

Personal marks of identification :- Til on his left chick, a small scar mark in his right leg and also a mark in his left fore finger.

A Copy of this memo is issued for information to :-

Postmaster, Chapra.

The Inspector of Post Offices, Siwan Sub-Division.

Mr. Bishwanath Prasad Verma.

E.D.A. Rampur Bindalal.

S.P.M. Ekma.

sd /- Supdt. of Post Offices Gandak-Division.

Learned Counsel for the Respondents has submitted that 1959 Rules was considered by the Orissa High Court in Ch. Venkata Swamy Vs. Superintendent, Post Offices and Another, . Orissa High Court has held that a temporary extra-departmental branch post master was not a person holding a civil post. Similar view was expressed by the Madras High Court in V. Subbarayalu Vs. Superintendent of Post Offices, Tanjore Division, Nagapattinam and Another, .

In Gokulananda Das v. Union of India 1976 Lab. I.C. 892 which was affirmed by the Supreme Court in The Superintendent of Post Offices and Others Vs. P.K. Rajamma, , the decision of the Madras High Court was dissented. Orissa High Court held that the decision in V. Subbarayalu Vs. Superintendent of Post Offices, Tanjore Division, Nagapattinam and Another, was contrary to the decision of the Supreme Court in State of Assam and Others Vs. Shri Kanak Chandra Dutta, .

In Nabaghan Sahu Vs. Election Officer, Mukundapur Grama Panchayat and Others, , it has been held that the decision in Ch. Venkata Swamy Vs. Superintendent, Post Offices and Another, was laying bad law in view of the decisison of the Supreme Court in State of Assam and Others Vs. Shri Kanak Chandra Dutta, .

For the reasons given, it must be held that the order of termination of the Appellant by the Inspector of Post Offices was null and void. The termination of services without following the mandate of Article 311 of the Constitution of India is second ground to hold the termination to be illegal. This appeal is accordingly allowed and the decree of the appellate Court is set aside with costs throughout and a decree in terms of the reliefs claimed in the plaint is passed.