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LALLAN RAJ versus UNION OF INDIA

High Court of Judicature at Allahabad

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Lallan Raj v. Union Of India - SECOND APPEAL No. 1398 of 1980 [2006] RD-AH 7680 (13 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 9.

Second Appeal No. 1398 of 1980

Lallan Rai                     Vs.          Union of India and others.

Hon. Sunil Ambwani, J.

1. Heard Sri Vashistha Tiwari for the appellant.

2. This appeal was dismissed for want of prosecution on 2.3.2006.  A restoration application was filed on 9.3.2006 after serving a copy on the Assistant Solicitor General of India.

3. The cause shown is sufficient.  The Second Appeal is restored to its original number and was heard.

4. The appellant was appointed as Extra Departmental Branch Post Master by the Senior Superintendent of Post Offices, Gorakhpur Division.  His appointment was on a substantive vacancy.  One Sri Surendra Prasad Rai, who was removed from the same post, at Khaira Banua (Gauri Branch) District Deoria on 22.12.1972, filed a O.S. No. 79 of 1975 in the court of Munsif Deoria which was decreed and his termination was declared to be illegal and void for want of compliance of the provisions of Article 311(2) of the Constitution of India.  Consequently, the plaintiff-appellant's services were retrenched on 24.1.1978.  

5. The plaintiff-appellant filed the O.S.No. 117 of 1978 in the court of Munsif Deoria which was decreed on 14.4.1979 with the findings that the order dated 24.1.1978 by the Superintendent Postal Department, Deoria was illegal and inoperative. The Civil Appeal No. 191 of 1979 was allowed on 27.3.1980 and the suit was dismissed.  Aggrieved the plaintiff-appellant has filed this second appeal.

6. The appeal was admitted on ground nos. (A) and ( C ) to

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the substantial questions of law. These grounds are as follows:

(A)Whether it was proper and legal in absence of any law that in order to honour a previous decree, which is unconnected with the subsequent decree, the latter is to be set aside?

( C )   Whether Extra Departmental Branch Post Master must be a person of the same village where the post office is situate?

7. The plaintiff-appellant's services were governed by the Post and Telegraphs Extra, Departmental Agents (Conduct of Service) Rules, 1964, placedin Schedule 1-B of the Post and Telegraph Manual Volume iii.    There is no provision of these rules for retrenchment or for a ituation like in the present case where a person who has completed three years service and is confirmed on a  substantive post can be subjected to termination of his service on the ground that the previous incumbent had obtained a decree for re-instatement on the post.  The appellate court confirmed the finding that no notice or opportunity was given to the plaintiff-appellant before terminating his services.  He had completed five years of service between 13.3.1973 to 24.1.1978 and was confirmed employee working on a substantive, non transferable post.

8. In The Superintendent of Post Office and others Vs. P.K. Rajamma and others, the Supreme Court Service Rulings, Vol. (4) 444 (Civil Appeal No.  1172 of 1972 and other connected Civil Appeals of 1974 and 1976) decided on 22.4.1976, the Supreme Court held that Extra Departmental Agents appointed under Post and Telegraph Extra Departmental Agents ( Conduct and Service) Rules, 1964, are not casual workers but holds post  under administrative control of the State.   It was  held that the relationship of Extra Departmental

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Agents and the department of Post and Telegraph is not that of agent and principal.  The Extra Departmental Agents holds civil post and their services can only be dispensed with in accordance with the provisions of Rules which requires show cause notice before such an action is taken.

9. A decree passed by a competent court declaring the termination of the previous incumbent of the post to be illegal, does not ipso facto, amounts to termination of service of the incumbent if he has been confirmed on substantive post.  In such a case he acquires rights under the rules as well as rights under Article 311(2) of the Constitution of India, which provides that the services of confirmed employee can only be terminated after giving him an opportunity by way of show cause notice.  In the present case such show cause notice was not given and thus termination order dated 24.1.1978 termed as 'retrenchments' was clearly violative of Article 311(2) of the Constitution of India.  I do not find any provision in the Rules providing for reinstatement of employee in whose favour the termination order has been declared to be bad in law and consequential termination of the person appointed in accordance with the Rules.  There is no such mandate in the Rules that the court's decree in favour of the previous incumbent will operate as termination of service of the person who was not a party in the suit and was validly appointed and has been confirmed on the civil post.

10. The substantial questions of law are thus answered in favour of the appellant.  The second appeal is allowed.  The judgment and decree of the Court of Munsif dated 3.7.1980 in Civil Appeal No. 191 of 1979 is set aside.  

11. This Court had stayed the order dated 24.1.1978 passed by the Superintendent, Post Office,  Deoria and the

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consequential termination of service of the plaintiff, by its order

dated 5.6.1980, which has protected the rights of the plaintiff-appellant.  He has since retired.    While Confirming the decree of the trial court it is directed that the plaintiff will be entitled and shall get the benefit of service as well as  pension admissible to him in accordance with law. The appellant shall also be entitled to the costs of this second appeal.

Dt.13.4.2006.

BM/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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