R. Santhanam, Member (A) )
This application has been filed praying for the following relief :-
"(i) to call for the relevant records from R-1, R-2 and R-3 leading to the issue of the following impugned orders, removing him from service, viz.,
a) Memo No. BED/3-337 dated 31.7.2002 / 2.8.2002 of R-1 (Annexure-A-I) removing him from service;
b) Memo No. ST/13-108/1/2005 dated 30.8.2005 of R-3 (Annexure-A.II) rejecting his appeal;
c) No.BO./Koligam/94 dated 22.1.94 of R-2 (Annexure A.VI) revising the working hours of the B.O.;
d) Lr.No.43-34/79-Pen dated 17.4.1979 of R-5 (Annexure-A VII and Memo No. ST/14-2-108/06 dated 28.3.2007 (Annexure-A.LXXXII) of R-4 rejecting his revision petition" (Added as per order dated 21-6-07 in M.A.185/2007) and quash the same as illegal, arbitrary, unjust, malafide and in violation of Articles 14, 16 and 21 of the Constitution of INdia and consequently direct the Respondents to reinstate him in service as the GDS BPM, Koligam B.O. and
ii) to direct R-5 to modify the existing Rules 6 and 9 of the GDS (CandE) Rules, 2001 and the instructions and clarifications thereunder vide Annexures A - LXXVIII, A - LXXIX and A- LXXX providing for compulsory retirement as a penalty in such cases and providing terminal benefits such as Pension, Ex-gratia Gratuity and Severance Allowance in such cases, and
iii) Pass such other order or orders as deemed fit and proper to the circumstances of the case".
2. The facts of the case in brief are as follows :-
The applicant was appointed as EDBPM, Koligam B.O. a/w Ichchapuram SO, Srikakulam District on regular basis with effect from 4.1.1973. He was later appointed as Secondary Grade Teacher in Panchayat Samithi School, Koligam, with effect from 26.11.1975 and obtained required permission from the BDO, Panchayat Samithi, Ichchapuram, to also work as EDBPM as required by the Postal authorities. Subsequently he was promoted as a School Assistant in Zilla Parishad High School, Koligam, in view of his qualifications. The applicant was issued a charge memo No. BED/3-337 dated 14-7-1997 under Rule-8 of the PandT EDA (CandS) Rules, 1964. The only article of charge was that he failed to submit his resignation from the post of BPM, in view of the clash of revised working hours of the BO with those of the school. According to the applicant, the working hours of the BO were re-fixed by the Sub-Divisional Inspector (SDI (P)), Sompeta, with a malafide intention without any complaints from the general public or from the Gram Panchayat and without taking into account the convenience of the general public and the needs of the department. In reply to the charge memo, the applicant submitted a representation dated 25.7.1997 in which he had referred to an earlier move to change the working hours by the SDI, Sompeta, and how he convinced the Superintendent of Post Offices, Srikakulam that it was not necessary to do so. The applicant had also mentioned that he had obtained fresh permission from Zilla Parishad authorities to work as BPM as directed by SP, Srikakulam in his letter dated 27.2.1996. Despite the applicant's representation, an enquiry was held under Rule-8 of PandT EDS (CandS) Rules, 1964. The Inquiry Officer submitted his report on 15.11.2000. The applicant submitted his representation on the enquiry report on 12.12.2000. Thereafter Respondent No.1 imposed the punishment of removal from service on applicant vide the impugned memo dated 31.7.2002 / 2.8.2002. The applicant was relieved from his post on 5.8.2002 by inducting one Sri J. Jagga Rao, BPM, Birlangi BO as the BPM, Koligam, BO. The applicant submitted an appeal dated 12.9.2002 to the Postmaster General, Visakhapatnam (R-4), through proper channel with an advance copy directly to R-4. But the 1st Respondent after keeping quiet nearly for 21 months, returned the same stating that it was not addressed to the competent authority. Hence the applicant resubmitted his appeal by letter dated 30.6.2004 to the DPS, Visakhapatnam (R-3), through proper channel with an advance copy directly to R-3. The DPC, Visakhapatnam, rejected his appeal by the impugned memo dated 30.8.2005 which was delivered to him on 5.10.2005. The applicant submitted a revision petition dated 31.3.2006 / 1.4.2006 to the PMG, Visakhapatnam (R4) through proper channel with an advance copy to R-4 directly. According to the applicant, there was no reply to this revision petition. The applicant claims that he had put in twenty nine and half years of service from 4.1.1973 to 5.8.2002 but no DCRG or Severance allowance was paid to him. The applicant claims that the entire disciplinary proceedings in his case was vitiated due to the malafide and biased attitude of the R-1 and R-2.
3. The applicant has adduced the following grounds among others, for setting aside the punishment of removal :-
(i) though the BO has been inspected several times by senior officers, none of them felt the need for revision of working hours;
(ii) the appointment of Sri Y. Krishna Rao, ASP, in the office of SSP, Srikakulam, as Inquiry Officer is irregular because he is the immediate subordinate of the SSP, Srikakulam (R-1) and he cannot take an independent and impartial stand;
(iii) the applicant's request for supply of additional documents was rejected by the Inquiry Officer in a partisan manner. The IO put several incriminating questions to the applicant which was indicative of bias on his part;
(iv) the IO had cross examined him which was clearly prohibited. The IO questioned him not only on behalf of the prosecution but also on behalf of the School management;
(v) Sri P.C. Rama Murthy (R-6) who was SDI (P), wanted to take vengence against the applicant since he had dare to point out the unsuitability of inducting one Sri S. Chirangeevulu as EDMC/DA;
(vi) respondent No.8 who had also worked as SDI(P) had harassed his daughters when they acted as leave substitutes during the applicant's absence from duty. The applicant had complained to the then SP, Srikakulam, on the unbecoming behaviour of R-8. Therefore, R-8 also had a grouse against him;
(vii) neither the disciplinary authority nor the appellate authority considered his various representations / appeals in a proper perspective;
(viii) since the applicant has not caused any pecuniary loss to the government due to alleged class of working hours, the punishment of removal which is like death sentence for the holder of a civil post should be set aside since it is grossly disproportionate and excessive.
4. The Respondents filed a reply statement contesting the claims of the applicant. According to them, the working hours of BPO were re-fixed from five hours to three hours during January, 2004 taking into account the hours of receipt and dispatch of mails, in the interest of public and departmental needs. As there was a clash in working hours of the BO with those of the school, the applicant was directed to submit his resignation from the post of BPM, Koligam, vide SP, Srikakulam, office letter No. BED/3-337 dated 28.1.1994. The applicant in his reply referred to his earlier letter dated 14.9.1993 and 16.12.1993 and another letter dated 27.1.1994 addressed to SDI (P), Sompeta, in which he had stated that the revised working hours are less convenient to the public. According to the Respondents, several complaints were received from the public regarding the work of the BPM. The working hours of business should be fixed as per the convenience of the public as well as the needs of the Department. As there was a clash in the working hours and as the applicant failed to tender his resignation from the post of BPM, a charge memo under Rule-8 was issued keeping in view the instructions of DG Posts in letter No. 43-44/79-Pen dated 17.4.1979 and after conducting due enquiry and following the procedure, the applicant was removed from service. His appeal was also rejected by the appellate authority. The applicant's petition to the Postmaster General, Visakhapatnam on 31.3.2006 was also rejected by the later on 28.3.2007.
5. The Respondents have denied the contention of the applicant that there was a malafide intention in re-fixation of the working hours of the BPM by the Sub-Divisional authority. They have referred to the letter No. 43-44/79-10 dated 17.4.79 of DG Pand T, which has laid down instructions / guidelines to the postal authorities in respect of teachers who are working as BPM. These guidelines stipulate as follows :-
"(i) Extra Departmental Agents who are working as teachers etc should be removed from service only if the general public and the Gram Panchayat etc., complain in writing that their working simultaneously as Extra Departmental Agents and teachers is not satisfactory. They should be removed from service only after proper enquiry and after following the procedure for taking disciplinary action against Extra Departmental Agents.
(ii) Where the working hours of the Post Offices and that of the Schools clash they should be asked to resign from either of the posts and if they fail to do so they should be removed from service, after following the prescribed procedure.
2. The timings of the Extra Departmental Post Offices should be fixed to suit the convenience of the general public and departmental needs".
The Departmental need is that as far as possible, the letters are to be delivered earlier in the day so that the customer who receives can also post replies to catch the day's mail. The Respondents have also disputed the claim of the applicant that he discharges his duties dispassionately. They have referred to letters pertaining to his adament and discourteous behaviour and dereliction of duties much to the ire of the customers. Those complaints had been enquired into by the then Sub-Divisional authority who had concluded that there was a need for keeping the BPM off duty and to take disciplinary action against him. The Respondents have reiterated that the applicant was removed after due departmental enquiry, giving him reasonable opportunity. According to them, there is no provision in the rules for payment of terminal benefits to the GDS who are removed from service. Since the applicant was removed from service keeping in view the instructions of in DG's letter, the punishment order is correct and justified.
6. The applicant has filed a rejoinder reiterating his contentions made in the main application. He has questioned the action of the PMG, Visakhapatnam (R-4), in rejecting his revision petition after the OA was admitted by this Tribunal. This action of Respondent No.4, according to him, is in violation of Section 19(4) of AT Act, 1985, and settled law in such cases. The applicant has also mentioned that he has since retired as Teacher, SA (SS), ZPHS, Koligam, on superannuation on attaining the age of 58 years on 31.8.2007. As he is now a retired person, the department can fix any working hours that they like since the post which he was holding has not been filled up on a regular basis. He has requested that he may be allowed to serve for another six years till he attains the age of 65 years which is the normal retirement age for the GDS. He has mentioned that he had submitted a representation to this effect dated 1.10.2007 to the 1st Respondent. In his rejoinder, the applicant has also taken exception to the reference made to some of the old complaints against him to justify his removal. Since they have not been cited in the charge memo, the Respondents are not justified in referring to them in their reply. The applicant has submitted that the P and T, ED (Conduct) Rules provides for lesser penalties other than the removal for the only charge of clash of working hours. Since he had served the department for twenty nine and half years, he has requested that the terminal benefits such as ex-gratia and Severance allowance should be sanctioned to him. He has also stated that there is a need to amend Rules 6 and 9 of GDS (CandE) Rules, 2001, as prayed for in para-8 (ii) of the OA.
7. Heard Sri TVVS Murthy, learned counsel for the applicant and Sri A. Rajendra Babu, learned additional standing counsel for the central government. The case laws cited by the learned counsel for the applicant are also perused.
8. The issues that arise for consideration are (i) whether the revision of working hours of BO by the respondents is arbitrary and illegal; (ii) whether the removal of the applicant is in accordance with the law; (iii) whether the existing Rules-6 and 9 of GDS (CandE) Rules, 2001 need modification and (iv) to what relief is the applicant entitled.
9. Issue No. (i) : The applicant has claimed that the working hours of the BO were re-fixed by the Respondent No. 2 with a malafide intention of removing him from service. According to him, there were no complaints from the general public or from the Gram Panchayat about the working hours and no inconvenience was caused to the department when the previous working hours were in force.
10. As per the revised Notice of Hours of Business (NHB), the revised working hours of Koligam BO was fixed as follows :-
Previous working hours of the BO Revised working hours of the BO
0600 hrs to 1000 hrs 0820 hrs to 1020 hrs
1700 hrs to 1800 hrs 1155 hrs to 1255 hrs
LB clearance : 0900 hrs
Despatch of mails : 0915 hrs Despatch of mails : 1255 hrs
Receipt of mails : 0945 hrs Receipt of mails : 1240 hrs Delivery of mails : 1000 hrs
The working hours of the school as seen from the reply statement were as follows :
1000 hrs to 1310 hrs and 1400 hrs to 1640 hrs in normal days
0800 hrs to 1240 hrs in summer
It is obvious from the above that there was a clash in the revised working hours of the BO and those of the school. It cannot be disputed that the revised working hours are more suitable from the public point of view. The previous working hours had stipulated that the Post Office would function from 6.00 in the morning. Hardly anyone would go to the Post Office before 8.00 am. It therefore makes sense that the working hours had to be revised. Having an additional one hour in the morning around lunch time would also be beneficial to the public. Para-2 of the DG's letter dated 17.4.1979 supra clearly mentions that the timings of the Extra Departmental Branch Post Office should be fixed to suit the convenience of general public and the departmental needs. The Respondents have stated in the reply that the departmental need is that as far as possible, letters are to be delivered earlier in the day so that the customer who receives can also post replies to catch the days mail. We see some logic into his contention. The department has every right to revise the working hours to suit the convenience of the general public. The convenience of the person discharging the functions of the BPM cannot be the criterion for fixing the working hours. At the same time, we notice that the working hours have been reduced from five hours to three hours. The reasons why such a reduction was made have not been given. We find that the Government have fixed the Time Related Continuity Allowance for EDBPM at Rs.1280-35-1980 for those with workload up to three hours and at Rs.1600-40-2400 for those with workload more than three hours. If the working hours were reduced in order to fix a lesser TRCA for the applicant, then it is certainly arbitrary. We hope that was not the case. The Respondents have not stated anywhere that the revision has been made after assessing the work load. We are of the considered view that the Respondents have every right to refix the working hours to suit the convenience of the public but any reduction in the number of working hours should be done only after assessing the workload. The first issue is decided accordingly.
11. Issue No. (ii) : The EDAs or GDS employees of P and T Department are covered by the Department of POsts, GDS (Conduct and Employment) Rules, 2001. Rules-21 to 29 specifically mention the do's and don'ts for GDS employees. According to Rule-21, every Sevak, shall at all times maintain absolute integrity and devotion to duty. Rule-22 prohibits their taking part in politics and elections. Rule-23 prohibits them from participating in strikes or resorting to coercion in connection with any matter pertaining to their conditions of employment. Rule-24 prohibits them from criticizing the government. Rule-25 deals with furnishing evidence before a Committee or any other authority. Rule-26 prohibits them from communicating information unauthorizedly. Rule-27 deals with insolvency and habitual indebtedness. While Rule-29 prohibits them from bringing political influence to bear upon any superior authority, Rule-28 provides for vindication of acts and character of a Sevak. All the other rules in the GDS (Conduct and Employment) Rules deal with the procedures governing their employment including disciplinary proceedings. Rule-9 specifies the penalties that may be imposed on a Sevak by the appointing authority "for good and sufficient reasons". The learned counsel for the applicant contended that the demand for the applicant's resignation by Respondent No.1 is illegal and for the applicant's refusal to obey an illegal order, he cannot be proceeded against under the GDS (Conduct and Employment) Rules.
12. The law is now will settled that the Tribunal's scope in disciplinary cases is rather limited. The Tribunals can intervene only if (i) the charges are vague or baseless; (ii) the Inquiry Officer has not conducted the inquiry in accordance with the procedure laid down; (iii) the findings of the Inquiry Officer are perverse; (iv) the principles of natural justice have not been followed in dealing with the employee and (v) the punishment is so disproportionate as to shock the conscience of the Tribunal. In this particular case, the learned counsel for the applicant has questioned the charge itself as baseless. Therefore, setting aside the other issues for the present, we shall deal only with the main charge. The only charge against the applicant is as follows :-
"That while Sri Anantaram Mahapatro working as ED BPM, Koligam BO in a/w Ichchapuram SO, the working hours of the BO have been refixed from 5 to 3 hours during January, 1994 taking into account the hours of receipt and despatch of mails and in the interest of public, that there is therefore clash in working hours of the BO and those of the ZPH School, Koligam where the BPM is working as BEd Teacher (Oriya), that when has been directed on 28.1.94 and 6.2.96 to tender his resignation to the post of BPM, he failed to do so in contravention of instructions contained in DG, PandT Lr.No.43-34/79-Pen dt.17.4.79 and thus he has failed to maintain absolute integrity and devotion to duty as required by Rule 17 of PandT EDAs (CandS) Rules, 1964 as amended from time to time".
The Director General, PandT in letter No. 151/4/77-Disc-II dated 16.1.1980 has given instructions as to how enquiries against ED Agents should follow Rule 14 of CCS (CCA) Rules in spirit. A gist of these instructions is extracted below :-
" (1) Enquiries against ED Agents following Rule 14 of CCS (CCA) Rules in spirit. - while it may not be necessary to follow the provisions of Rule 14 of CCS (CCA) rules, 1965, literally in the cases of ED Agents, it would be desirable to follow the provisions of that rule in spirit so that there may be no occasion to challenge that the opportunities under Article 311 (2) of the Constitution were not provided".
Rule-14 of CCS (CCA) Rules deals with the procedure for imposing major penalties. As per DGP and T lr. No. 6/19/72-Disc.I dated 29.11.1972, the types of cases which may merit action for imposing one of the major penalties is given in annexure to that letter. These cases are as follows :-
"1. Cases in which there is a reasonable ground to believe that a penal offence has been committed by a Government servant but the evidence forthcoming is not sufficient for prosecution in a Court of Law, e.g.,
(a) possession of disproportionate assets ;
(b) obtaining or attempting to obtain illegal gratification;
(c) misappropriation of Government property, money or stores ;
(d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate.
2. Falsification of Government records.
3. Gross irregularity or negligence in the discharge of official duties with a dishonest motive.
4. Misuse of official position or power for personal gain.
5. Disclosure of secret or confidential information even though it does not fall strictly within the scope of the Official Secrets Act.
6. False claims on the Government-like T.A. claims, reimbursement claims etc.,"
There can be no doubt that removal from service is a major penalty and it can be imposed on an employee whether he is a full-time government servant or a GDS only if there is grave misconduct. That removal is a very serious punishment should also be obvious from the guidelines issued by the DG Posts in his letter No. 294/90-(E) 1 Trg., dated 26-7-1990. The following guidelines have been prescribed to be followed by the competent authority before putting an ED Agent off duty :
"(a) enquiries made into a complaint or the inspection of an office should have revealed a prima facie case against the delinquent;
(b) the offence should be of such a serious nature that removal from service would be probable ultimate punishment and it would therefore be inadvisable that the offender should be allowed to continue to perform his duties pending finalization of the disciplinary case against him;
(c) petty breaches of discipline and minor departmental offences like unauthorized absence, leave without sanction and irregularities of minor nature should not normally justify putting an EDA off duty;
(d) wilful, obstinate or repetitive refusal to carry out an order rendering his retention on duty a hurdle to proper conduct of inquiry would also justify an EDA being put-off duty;
(e) an EDA against whom a criminal charge involving moral turpitude is pending, may be put-off duty during the period when he is actually detained in custody or imprisoned or enlarged on bail".
The above guidelines would show that the authorities are required to exercise caution even while putting EDAs off duty. It would appear from the above that removal from service, which is an ultimate punishment can be resorted to only if the offence committed by the GDS is of such a serious nature that his continuance in service would be untenable. In other words, the GDS should have committed some grave misconduct.
13. In Union of India and Others Vs. J. Ahmed (AIR 1979 SC 1022), the Hon'ble Supreme Court has dealt at length on what constitutes misconduct. The relevant paragraphs from this judgment are extracted below :-
"10. It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the context of disciplinary proceedings entailing penalty.
11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1886) 17 QBD 536 (at p.542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers)], (1959) 1 WLR 698. This view was adopted to Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur, 61 Bo, LR 1596: (AIR 1961 Bom 150) and Satubha K. Vaghela v. Moosa Raza, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under :
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434 : (AIR 1966 SC 1051), in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566 : (AIR 1967 SC 1274), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104 : (AIR 1963 SC 1756), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co.-op. Department Stores Ltd., (1978) 19 Guj. LR 108 at p. 120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty".
14. In the case before us, the charge against the applicant is that he failed to tender his resignation to the post of BPM, in contravention of instructions contained in DGP and T lr. No. 43-34/79-Pen. dated 17.4.1979 and thus he failed to maintain absolute integrity and devotion to duty as required by Rule-17 of Pand T, EDAs (CandS) Rules, 1964 as amended from time to time. It is seen from the first paragraph of the DG's letter supra that EDAs working as teachers should be removed from service only if the general public and the Gram Panchayat etc., complain in writing that their working simultaneously as EDAs and Teachers is not satisfactory and that they should be removed from service after proper enquiry and after following the procedure for taking disciplinary action. It is not the case of the Respondents that complaints have been received against the applicant from the general public or from the Gram Panchayat in writing that his work is unsatisfactory. But the respondents in their reply affidavit have enclosed copies of some complaints received against the applicant at different points of time. The dates on which these complaints were received are not mentioned in all cases. One complaint from the Vice-Chairman and Sarpanch of the Panchayat Samithi is dated 22.12.1993. There is another complaint from the Hon'ble Member of Parliament dated 9.3.1995. There is also a complaint preferred by Sarpanch, Keetipuram. It was received through the then Union Minister Sri K. Yerranaidu dated 16.3.1997. It is to be borne in mind that it is not the charge against the applicant that his work was unsatisfactory or there were complaints against him. As pointed out by the applicant in his rejoinder, no reference has been made to the complaints in the charge memo dated 14.7.97. If the complaints against the applicant were the basis for proceeding against him, they should have been mentioned the same in the charge memo and the complaints should have been listed in the list of documents giving an opportunity to the applicant to defend himself. It has not been done. A higher official cannot force a lower official to resign his job when no shortcoming or deficiency or lapse in his work has been pointed out and the lower official is not obliged to obey the higher official's instructions in such cases. The higher official cannot take disciplinary action against him for this alleged misconduct. In our considered view, the charge against the applicant does not come under the category of misconduct. We have therefore no hesitation in holding that the charge itself is baseless. We do not think it is necessary to go into the other aspects like the motive behind the issue of charge memo or the manner in which the disciplinary proceedings were conducted etc., since the charge itself has been held to be no sustainable in law. Therefore, the second issue is found in favour of the applicant.
15. Issue No. (iii) : Learned counsel for the applicant invited attention to the order of the Cuttack Bench of this Tribunal in the case of Sachidananda Parija Vs. Union of India and Others ( 1987 (2) ATC 813) in which it was held that Rule-7 of the 1964 Rules providing minimum penalty of removal from service for minor and trifling charges was held unreasonable and required amendment. It was observed that "it is high time the Central Government in the Ministry of Communications (Posts) to seriously take up this matter and effect necessary amendments to Rule-7 providing for lesser penalty according to suitable cases (sic) to be imposed by the disciplinary authority in respect of minor charges. Otherwise, there would be a great hardship for the employees who would be committing minor offences". Learned counsel for the applicant argued that the Rules require amendment because even for minor offences the extreme penalty of dismissal or removal is ordered by the superior officers and the GDS employees are always at the mercy of the officials of the department at the intermediate level. We find that the orders of the Tribunal referred to by the learned counsel for the applicant were passed on 13.11.1986 in TA 103/1986 (O.J.C.No.632/80) of Cuttack Bench. Subsequent to that, Rule-7 of PandT (Conduct and Service) Rules, 1964, had been amended incorporating three additional penalties through letter No. 10-4/90 Vig. III dated 16.5.1999. Penalties like censure, debarment from appearing in the departmental examination and debarment for promotion have been introduced and a revised proforma for maintaining record of service for EDAs has also been circulated. It is a moot point whether the number of penalties mentioned in Rule-9 of GDS (Conduct and Employment) Rules, 2001, needs further amendment in the light of the difficulties faced by the GDS employees. Since the GDS employees are not full time government servants, the department probably is of the view that inclusion of all the minor and major penalties specified in CCS (CCA) Rules may not be called for. P and T Board will no doubt take all aspects into consideration and come out with appropriate amendments as and when necessary as was done in 1991. We do not think any directions from this Tribunal are warranted at this stage. Therefore this issue is decided accordingly.
16. Issue No. (iv) : Since the charge against the applicant has been held to be not legally sustainable, it has to be quashed and set aside. Consequently the impugned orders of the disciplinary, appellate and revising authorities have also to be quashed and set aside. The applicant will be entitled to all the benefits for the service that he has already rendered as EDBPM. It is not disputed that the applicant has put in twenty nine and half years of service as EDBPM. In addition to discharging this work, he worked as a Teacher in the High School as well. It is also not in dispute that he is highly qualified with three postgraduate degrees. The issue of clash of working hours of BO with the working hours of the High School has been raised earlier also and the applicant had mentioned in his explanation that he was able to convince the then SPO that there was no need to change working hours. We do not know whether he was able to manage despite the clash in working hours by taking special permission for attending the school late in the morning or by putting in extra hours in the evening. But it is a matter of record that he had worked continuously for more than twenty nine years. We find from the rejoinder that the applicant has given a representation on 1.10.2007 to the Respondent No.1 in which he has stated that he has retired from the service of Teachership on 31.8.2007 AN and he is now free to work at any working hours that may be proposed by the authorities. He has requested that he may be posted back as BPM, Koligam by sending back Sri I. Venkata Ramana to his original post of GDS Packer/MC Bus stand P.O., Ichchapuram who is working on departmental arrangement. Considering the fact that the applicant is fully qualified to hold the post of BPM and he will be free to devote his full time to this job and his long experience as EDBPM and the fact that he will continue for another five years, we are of the view that the Respondents should consider his representation in right spirit. In case the applicant is taken back on duty, he will not claim back wages for the period he has not worked i.e. from 5.8.2002. Since he applicant was a part time employee, he cannot claim back wages for the period he did not discharge his duties as EDBPM. The Respondents are free to incorporate this condition if he is taken back into service. The fourth issue is decided accordingly.
17. In the result, the OA is allowed setting aside the Memo No. BED/3-337 dated 31.7.2002 / 2.8.2002 of R-1 removing the applicant from service, memo No. ST/13-108/1/2005 dated 30.8.2005 of R-3 rejecting the applicant's appeal, and Memo No. ST/14-2-108/06 dated 28.3.2007 of R-4 rejecting applicant's revision petition. Consequently the applicant would be entitled to the benefits that accrue from his service as EDBPM. The Respondent No.1 is directed to consider the representation of the applicant dated 1.10.2007 and take a decision within a period of one month from the date of receipt of a copy of this order in the light of the observations in para-16 supra.
18. There is no order as to costs.