Writ Petition No. 27 of 2007 · Uttarakhand High Court · 2012

Judgment

1. This writ petition was dismissed for non-prosecution on

4.6.2010. Now a restoration has been filed by the petitioner along with an application for condoning the delay in filing the restoration application.

2. Reasons assigned in the delay condonation application seem to be bona fide. Delay condonation application (CLMA No. 3863 of 2012) is allowed. Delay in filing the restoration application is condoned.

3. Reasons assigned in the restoration application seem to be bona fide. Restoration application (MCC No. 292 of 2012) is allowed. Order dated 4.6.2010 is hereby recalled. The matter is restored to its original number.

4. The petition is now being heard on merits.

5. The petitioner is an Extra Departmental Postal Agent in the Postal Department working in District Almora. According to the petitioner, it is not a civil post and hence it is not amenable to jurisdiction before the Central Administrative Tribunal. In the counter affidavit filed by the respondents as well, no such objection has been raised. The petition is therefore being heard on merits.

6. The petitioner is an Extra Departmental Postal Agent (hereinafter referred to as (cid:147)the E.D.P.A.(cid:148)) who is also known as Gramin Post Master. A disciplinary proceeding was 2 initiated against him in the year 2001 although in the inquiry report filed therein he was exonerated, yet the punishment imposed disciplinary authority

29.11.2002/16.12.2002 which was for debarring him for appearing in departmental examination for three years. Now under the Rules, which govern the services of the petitioner, they are known as Department of Posts, Gramin Dak Sevak (Donduct and Employment) Rules, 2001 (hereinafter referred to as the (cid:147)Rules(cid:148)) the petitioner had a right of making a statutory appeal under Rule 13 of the Rules before the next higher authority. The limitation prescribed for preferring the appeal was of 90 days. All the same, before the petitioner could exercise his right of statutory appeal, the authority known as Postmaster General, which is the head of the circle has suo motu passed an order under Rule 19 of the Rules and took a decision of reopening the matter. This decision, according to the petitioner, was taken by the authority on

29.1.2003 and thereafter a show cause was given to him vide letter dated 26.03.2003. Ultimately, after hearing the petitioner, his services were terminated vide order dated

20.10.2004. It is this order, which the petitioner has

The principal submission of the learned counsel for the petitioner is that the concerned authority who has passed the order of termination under the purporting exercise of revision under Rule 19 of the Rules infact had no jurisdiction to do so. Rule 19 of the Rules, on which heavy reliance has been placed by the learned counsel for the petitioner reads as under:- (cid:147)19. Revision.(1) Notwithstanding anything contained in these rules- (i) the Head of the Circle, or Region (ii) any other authority immediately superior to the authority passing the order; or 3 (iii) any other authority specified in this behalf by the Government by general or special order, and within such time as may be specified in that general or special order; may, at any time, either on its own motion or otherwise call for records of any enquiry or disciplinary case and revise an order made under these rules, reopen the case and after making such enquiry as it considers necessary, may (a) confirm, modify or set aside the order (b) pass such orders as it deems fit: Provided that no such case shall be reopened under this rule after the expiry of six months from the date of the order to be revised except by the Government or by the Head of Circle or by the Postmaster-General (Region) and also before the expiry of the time-limit of three months specified for preferring an appeal under Rule14: Provided further that no order imposing or enhancing any penalty shall be made by any Reversionary Authority unless Sevak concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) and (vi) of Rule 9 or to enhance the penalty shall be imposed except after the enquiry in the matter laid down in Rule 10, in case no such enquiry has already been held. (2) No application to revise an order made on an application for a revision or order passed or made on a revision shall be entertained.(cid:148)

8. Petitioner does not dispute the power of the concerned authority, which is of the heavy importance, but according to the petitioner, these powers can be exercised only after the statutory period of appeal has expired and the second limitation is that the decision or the intention to open it cannot be taken after the expiry of six months from the date of order impugned.

9. Learned counsel for the respondents/Union of India Mr. V.P. Bahuguna contends that this submission of the counsel for the petitioner is entirely misconceived and has tried to 4 read the provisions of Rule 19 of the Rules once again before this Court. Learned counsel has explained that although the limitation not to reopen the case before the expiry of period of statutory appeal may be there before the next superior authority but such limitation is not there with the three authorities i.e. Government, Head of the Circle and Postmaster-General (Region) and since the power has been exercised under Rule 19 of the Rules by the authority, specifically mentioned, who has no such limitation of either before the expiry of statutory period of appeal or even after the six months, there is no anomaly in the order. The contention of the learned counsel for the respondents appears to be correct as far as the limitation not to open the matter after the expiry of six months is concerned the concerned authority still has the power. The limitation of not exercising the power under Rule 19 of the Rules before the statutory period of appeal has expired, the authorities is not having the limitation is not correct and thus, this Court is inclined to accept the plea that not to exercise the power under Rule 19 of the Rules before the statutory period of appeal has expired. This has specifically done for the purpose, which is that the right of statutory appeal is of the employee who can exercise this right within that period. The petitioner in this case could not even exercise the right of statutory appeal before the authority had exercised their power suo motu under Rule 19 of the Rules.

10. The second contention of the respondents is that even assuming this to be a limitation with the authorities, the authorities have exercised this power after the statutory period of three months inasmuch as the first order dated

29.01.2003 is only a letter by which an intention was expressed of opening the issue and the matter actually was open on 26.3.2003 (annexure CA-9 to the counter affidavit). 5 In this letter, again there is a reference of the letter-dated

29.1.2003, earlier a copy of which was also served upon the petitioner, in which only an intention was shown to reopen the matter. The matter was not open on 29.1.2003 but the correct date would be 26.3.2003. This court is not inclined to accept this argument for the simple reason that in the impugned order dated 20.10.2004 the date, which has been mentioned for reopening the matter is 29.1.2003, which is a date on or before the statutory period of appeal could expire. Therefore, it is in violation of Rule 19 of the Rules. Moreover, the exact language of Rule 19 of the Rules is that before expiry of 90 days, the matter could not be (cid:147)reopened(cid:148). The fact that the copy of the letter dated 29.1.2003 was forwarded and issued to the petitioner as well showed that the respondent had all the intention on that date to reopen the matter. Therefore, the date on which the matter stood reopen by the authorities will be 29.1.2003 and not 26.3.2003. There is no provision under the Rules by which the authority has to show an intention to open the issue. The subsequent order dated 26.3.2003 has only been passed by the concerned authority in order to cover up the lapses and the procedural anomaly on their part. Therefore, in short, this court is of clear opinion that the power which has been exercised suo motu by the concerned authority has been done totally in violation of law and without jurisdiction. Therefore, the writ petition succeeds. Impugned orders dated 20.10.2004 and

17.5.2006 are set aside. The petitioner shall be treated to be reinstated in services.

11. No order as to costs. Kuldeep (Sudhanshu Dhulia, J.)

24.08.2012