Full Judgment Text
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PETITIONER:
SUB-DIVISIONAL INSPECTOR OF POST,VAIKAN & ORS. ETC.
Vs.
RESPONDENT:
THEYYAM JOSEPH ETC.
DATE OF JUDGMENT: 02/02/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 AIR 1271 JT 1996 (2) 457
1996 SCALE (2)386
ACT:
HEADNOTE:
JUDGMENT:
WITH
C.A.NOS. 3392, 3391, 3387, 3389, 3388 AND 3390 OF 1996
[Arising out of SLP (C) Nos. 6163/93, 2593/94, 10190,
1918, 17577, 1919/95]
AND
CIVIL APPEAL NO. 2431 OF 1994
O R D E R
C.A. NOS. 3389, 3390, 3387, 3388 AND 3392 of 1996
[@ SLP Nos.1918, 1919, 10190 and 17577/95, 6163/93 and
C.A. No. 2431/94]
Leave granted.
We have heard the learned counsel on both sides.
Shri N.G. Malik, E.D. Packer was recruited on
September 21, 1991 and sent for training from September 23,
1991 to October 2, 1991. The respondent came to be appointed
as a substitute w.e.f. September 21, 1991 without observing
any formality of appointment, as a stop-gap arrangement. It
would appear that N.G. Malik had not reported for duty after
the training and the respondent continued in the post of
E.D. Packer. On August 2, 1993, without notice, he was
terminated from service. He approached the CAT, Ahmedabad
Bench in O.S. No.51/1994 and same are the facts in all other
cases.
The Tribunal by its impugned order dated May 12, 1994
allowed the case, set aside the orders of termination of
Sailesh Kumar on the ground that the appellant is an
industry, the respondent is a workman governed by the
Industrial Disputes Act, 1947 (for short, ’the Act’). Under
Section 25F, no notice was issued terminating the service
nor retrenchment compensation was paid, therefore, the
respondent is entitled to reinstatement and it would be open
to the appellant to take action against him according to the
relevant provisions of the Act. Thus these appeals by
special leave. Similar views are expressed by all the
Tribunals covered in the batch.
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Shri Goswami, learned senior counsel for the
appellants, contended that appointments of these Extra-
Departmental Agents are regulated under the statutory
instructions issued by the Director General of Postal and
Telecommunication from time to time. Being governed by those
statutory rules, they are not permanent employees. They are
only part-time employees on contract basis subject to the
conditions mentioned therein. Therefore, neither the
appellant is an industry nor is the respondent a workman
under the provisions of the Act. The Tribunal, therefore,
was wrong in its finding that the provisions of the Act are
attracted. The learned counsel for the respondent and also
Sri Nambiar, counsel appearing for the other respondents,
contended that the counsel who appeared for Union of India
before the Tribunal have conceded that the appellant is an
industry and, therefore, the Tribunal was right in its
conclusion that the procedure prescribed in the Act shall be
followed. Since no notice under Section 25F of the Act was
given, the termination of the service is illegal and,
therefore, is consistent with law.
Having regard to the contentions, the question arises
whether the appellant is an Industry? India as a sovereign
socialist, secular democratic republic has to establish an
egalitarian social order under rule of law. The welfare
measures partake the character of sovereign functions and
the traditional duty to maintain law and order is no longer
the concept of the State. Directive principles of State
Policy enjoin on the State diverse duties under Part IV of
the Constitution and the performance of the duties are
constitutional functions. One of the duty is of the State is
to provide telecommunication service to the general public
and an amenity, and so is one essential part of the
sovereign functions of the State as a welfare State. It is
not, therefore, an industry.
The appointment of the respondent is governed by the
Rules in Section III of the compilation of Swamy’s service
Rules for Extra-Departmental Staff in Postal Department. The
Rules provide the method of recruitment thereunder. The age
qualification has been prescribed between 18 to 65 years.
The educational qualifications have been prescribed with.
Matriculation as minimum qualification for Extra
Departmental ED Sub-Postmasters and ED Branch Postmasters.
VIII Standard as minimum educational qualification has been
prescribed for ED Delivery Agents, ED stamp Vendors and all
other categories of EDAs and preference is given to the
candidates with Matriculation qualification. Income limit
and holding of property have been regulated in Rule 3
thereof. It is mentioned that the persons who take over the
agency must be one who has an adequate means of livelihood
and is a resident of the place as mentioned in the Rules.
The persons are selected under the specified conditions, any
appointment made is in the nature of a contract liable to be
terminated by notice given in writing. Sub-rules (3) to (5)
prescribe the verification of the antecedents and medical
examination etc. Rule 6 provides that employment to disabled
ex-service personnel is to be given. Rule 7 gives preference
to the SC and ST in appointments. Rule 8 finds the
percentage of posts for the recruitment of the Scheduled and
Scheduled Tribe candidates. Rule 9 gives right to appoint
even the teachers as Extra Departmental Agents. Rule 10
prescribes the method of appointment of the teachers as
Extra-Departmental Agents. Rule 11 prohibits employment of
near relation in the same office. Rule 12 prescribes
appointment of ED Branch Post Master by Inspectors. Rule 13
prescribes provisional appointment of Extra Departmental
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Agents.
The scale of pay has been prescribed in Section V and
for Calculation of Consolidated Allowance instructions are
issued from time to time under Rule 2.1 dealing with Extra
Departmental Sub-Postmasters/ED Stores/ED Sub-Record Clerks,
The basic allowance payable to them shall be subject to a
minimum of Rs.385/- P.M. and maximum of Rs.620/- P.M. The
workload of them has been mentioned in Rule 2.1 (b) (c) (d),
Rule 6 prescribes for Office Maintenance Allowance and Rule
5 for cycle allowance. Rule 7 relates to Fixed Stationery
Charge. lt would thus be seen that payment of salary has
been regulated under these rules elaborated in further
rules.
Section II provides for EDA Conduct & Service Rules.
Rule 6 deals with power of termination and reads as under :
"6.Termination of Services.- (a)
The services of an employee who has
not already rendered more than
three years’ continuous service
from the date of his appointment
shall be liable to termination at
any time by a notice in writing
given either by the employee to the
appointing authority or by the
appointing authority to the
employee;
(b) the period of such notice shall
be one month;
Provided that the service of
any such employee may be terminated
forthwith and on such termination,
the employee shall be entitled to
claim a sum equivalent to the
amount of his basic allowance plus
Dearness Allowance for the period
of the notice at the same rates at
which he was drawing them
immediately before the termination
of his services, or, as the case
may be, for the period by which
such notice falls short of one
month.
Note. - Where the intend effect of
such termination has to be
immediate, it should be mentioned
that one month’s basic allowance
plus Dearness Allowance is being
remitted to the ED Agent in lieu of
the notice of one month through
money order."
Rule 7 prescribes the nature of the penalties which reads as
under:
"7.Nature of penalties - The
following penalties may, for good
and sufficient reasons and as
hereinafter provided, be imposed on
an employee by the appointing
authority, namely;
(i) Censure;
(ii) Debarring of ED Agents from
appearing in the recruitment
examination for the post of postman
and/or from being considered for
recruitment as Postal
Assistants/Sorting Assistants for a
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period of one year or two years or
for a period not exceeding three
years;
(iii Debarring of ED Agents from
being considered for recruitment of
Group ’D’ for a period not
exceeding three years.
(iv) Recovery from allowance of the
whole or part of any pecuniary loss
caused to the Government by
negligence or breach of orders;
(v) Removal from service which
shall not be a disqualification for
future employment;
(vi) Dismissal from service which
shall ordinarily be a
disqualification for future
employment."
It would thus be seen that the method of recruitment,
the conditions of service, the scale of pay and the conduct
Rules regulating the service conditions of ED Agents are
governed by the statutory regulation. It is now settled law
of this Court that these employees are civil servants
regulated by these conducts rules. Therefore, by necessary
implication, they do not belong to the category of workmen
attracting the provisions of the Act. The approach adopted
by the Tribunal, therefore; is clearly illegal.
It is seen that the respondent was appointed as a
substitute to the regular candidate who did not ultimately
turn up for duty after training. The respondent having been
appointed and having worked de hors the rule, therefore,
remains to be an ad hoc Extra Departmental Packer. He will
be entitled under the Conduct Rule 6 to the payment of the
amount to be calculated for one month allowance plus D.A.
The same shall be paid. The Tribunal was wholly wrong in
directing the appellant to terminate the services in
accordance with the provisions of the Act. The respondent is
at liberty to apply for, along with other candidates, when
any vacancy arises and is filled up. The appellant is
directed to consider his case which will also be done
according to the rules. He may be considered if he is found
eligible and may be appointed to the post per rules
The appeals are accordingly allowed.
C.A. No. 3387/96
----------------
(@ SLP (C) No. 2593/94)
Leave granted.
The facts of this case are that the respondent was
selected on regular basis as substitute to Extra-
Departmental Packer at Calicut. While he was working,
recruitment was made by calling the names from the
Employment Exchange. Since his same was not sponsored, he
was terminated from employment. In view of the reasoning
given above, he being temporary working candidate, he cannot
get any right; however, his case is directed to be
considered along with other candidates and if he is found
eligible, he may be considered and appointed according to
the Rules.
The appeal is allowed.
C.A. Nos. 3385-86 of 1996
-------------------------
[@ SLP Nos. 587-88/92]
Leave granted. Delay condoned.
Though the principle of law laid down hereinbefore is
settled since the respondent has been working since 1983, we
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decline to interfere with the order passed by the Tribunal.
Appeals are accordingly dismissed. No costs.