CH VENKATA SWAMY Vs. SUPERINTENDENT POST OFFICES

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India against an order of dismissal of the petitioner, dated 27-11-54. The petitioner's case was that he was appointed on 7-9-25 as an extra-departmental branch post-master of golabando. in Berhampur Division by the opposite party on a monthly salary of Rs. 25/ -. On 24-2-54 the Superintendent of Post Offices, Berhampur Division, issued a letter to the petitioner to the effect that it was reported that he was indulging in politics, especially pro-Andhra activities which are against the Government Servants' conduct Rules, and he was asked to explain within five days from the receipt of the letter as to why drastic action should not be taken against him. The petitioner duly submitted his reply on 1-3-54 pleading absolute innocence. On 13-3-54 a warning was issued by the Superintendent of Post Offices, Berhampur division, to the petitioner in the following terms: "you should remain aloof from politics, especially pro-Andhra activities, which are against the Government Servants' Conduct Rules, else there is no other alternative but to remove you from the charge of the office. " thereafter all of a sudden, the petitioner was ordered on 27-11-54 to make over charge of his office to one Sri Adikanda Patrd, Head-master, Board Elementary school, the same afternoon. On 6-12-54, the petitioner received orders from the opposite party that his services as extra departmental branch post-master, golabando, were dispensed with, with effect from 27-11-54 afternoon under Rule 2 (iii) of Schedule I-B of Posts and Telegraphs Manual, Vol. III. The petitioner, thereupon, preferred an appeal to the Director of Posts and telegraphs, Cuttack, which was rejected on 17-1-1955. It is alleged that the opposite party No. 1 never made any enquiry regarding the alleged activities of the petitioner and that the notice given to the petitioner on 24-2-54 was too vague and baseless. Further, subsequent to 13-3-54, no fresh charges were made against the petitioner, nor was he called upon to explain his misconduct, if any, but his services were all of a sudden dispensed with without assigning any reason whatsoever. The removal of the petitioner is thus arbitrary and without any proof, much less arty material on record of which notice was given to the petitioner for his explanation. It is complained that at no stage any reasonable opportunity was given to the petitioner to explain his doubtful character or his unsatisfactory work for which his services are said to have been dispensed with. Thus, the mandatory provisions of article 311 (2) of the Constitution of India are violated, and the petitioner is entitled to a writ of mandamus against the opposite party.

(2.) THE opposite party filed a counter-affidavit to the above petition and averred that the petitioner was only a temporary part-time employee under the government receiving no regular salary, but only an allowance per mensem and as such his services could be terminated at any time without notice or any other formalities which could attract Article 311 (2) of the Constitution. The petitioner no doubt was employed as an extra-departmental agent from 7-925 to 27-11-54, but he does not come under R. 3 of the Civil Services (Classification, Control and Appeal) Rules. Those services were clearly and definitely excluded from the operation of the said Rules. Thus, the extradepartmental agents along with certain other temporary employees of the department are wholly excluded from the operation of the Civil Services (Classification, Control and Appeal) Rules as specifically stated in para 4 of chapter 1 of the Manual of Appointments and Allowances of Officers of the Posts and Telegraphs Department. With regard to the facts alleged in the petition, it was averred that on receiving reports that the petitioner was indulging in political activities conducive to communal disturbances, which are against the Government Servants' Conduct rules, by which the petitioner is bound, and which prohibit the Government servants including part-time employees of the Government from taking part in political activities, the Superintendent of Post Offices, Berhampur, though it was not incumbent upon him, served the petitioner with notice to explain why drastic action should not be taken against him and also he was warned that he should keep himself aloof from such political activities which may bring about communal disturbances, failing which the petitioner would run the risk of being removed from the charge of his office. According to Memo No. Esb/110-16/32 dated 20th December, 1923 from the secretary to, the Government of India, Department of Industries and Labour, posts and Telegraphs Branch, New Delhi to the Director General of Posts and telegraphs full power of control over extra departmental agents employed, in the posts and Telegraphs department was conferred on the Director General, and under Annexure "b'' to the said memo the petitioner was liable to be removed from service for unsatisfactory work or doubtful character. It was further stated that it was not necessary under the conditions of service of the petitioner as laid down by Rule (2) (A) (iii) of the Posts and Telegraphs manual, Vol. III to make any such enquiry or give any opportunity to the petitioner to submit his explanation or assign any Teason for discharging him from service. The petitioner being only a temporary part time employee is not deemed to be holding a civil post for the purpose of Article 311 (2) of the Constitution, and that in any case, as ,a temporary extra-departmental agent, his services were liable to be terminated without observance of the formalities under Article 311 (2) of the constitution.

(3.) MR. Ramdas, learned counsel appearing on behalf of the petitioner, however, contended that the petitioner, was doubtless a Civil servant and as such the provisions of Article 311 (2) of the Constitution would apply to him; and accordingly his discharge without any enquiry and without any reasonable opportunity for submitting his explanation, is against the provisions contained in article 311 (2), and as such it offends the constitutional provisions, and he is entitled to a writ.