IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 WP(C).No. 35435 of 2007(S) -------------------------- OA.789/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: --------------- P.V.MOHANDAS, AGED 55 YEARS, S/O P.V.VAVA,(RETIRED ASSISTANT SUPERINTENDENT OF POST OFFICES, TRICHUR POSTAL DIVISION) RESIDING AT 'REVATHY', CC NO.26/2468,THEVARA, ERNAKULAM DIST. BY ADV. SRI.T.C.GOVINDA SWAMY SMT.D.HEERA SMT.R.R.REJITHA RESPONDENTS: --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATION, NEW DELHI. 2. THE MEMBER(P), POSTAL SERVICES BOARD, DAK BHAVAN, NEW DELHI. 3. THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM-33. 4. THE POST MASTER GENERAL, CENTRAL REGION, ERNAKULAM, KOCHI-16. 5. THE DIRECTOR OF POSTAL SERVICES, CENTRAL REGION, KOCHI-16. 6. THE DIRECTOR OF POSTAL SERVICES (HEADQUARTERS), OFFICE OF THE POST MASTER GENERAL, THIRUVANANTHAPURAM. 7. THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, KOCHI-17 - THROUGH ITS REGISTRAR. ADV. SRI.C.S.AJITH PRAKASH FOR R1 TO 7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.35435/2007 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF ORDER OF THE HON'BLE TRIBUNAL IN O.A.NO.789/2003 DT.13.3.2006. EXT.P2: COPY OF O.A.NO.789/2003 FILED BY THE PETITIONER ALONG WITH ITS ANNEXUES BEFORE THE HON'BLE TRIBUNAL. EXT.P3: COPY OF REPLY STATEMENT DT. NIL JANUARY 2004 FILED BY THE 5TH RESPONDENT IN THE O.A. EXT.P4: COPY OF REJOINDER DT.27.1.2004 FILED BY THE PETITIONER IN THE O.A. EXT.P5: COPY OF ORDER BEARING NO.ST/63-1/89 DT,28.11.1989, ISSUED FROM THE OFFICE OF THE DIRECTOR OF POSTAL SERVICES (HQ) EXT.P6: COPY OF COMMON ORDER IN O.A.NO.450/01 AND CONNECTED CASES DT.18 SEPTEMBER, 2003 OF THIS HON'BLE COURT. EXT.P7: COPY OF ORDER BEARING NO.CC/2-27/2001 DT.10.2.2005, ISSUED BY THE ASSISTANT DIRECTOR, IN THE OFFICE OF THE 4TH RESPONDENT. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ---------------------------------------- W.P.(C) No.35435 OF 2007 ---------------------------------------- Dated this the 16th day of January, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner was the applicant in O.A.No.789/2003. The said Original Application was filed by him, challenging the order of the disciplinary authority imposing the punishment of compulsory retirement from service (Annexure A1), the order of the appellate authority confirming the same (Annexure A2) and also the order of the reviewing authority rejecting his review application (Annexure A3). 2. The allegations against him was that while selecting two ED employees for two different post offices, he did not go by the marks secured by the candidates in the S.S.L.C. Examination. Persons with lower marks were preferred. The same was done receiving bribe. The petitioner denied the allegations and submitted that there is no binding rule or order, which says that selections should be done strictly in accordance W.P.(C) No.35435/2007 2 with the S.S.L.C. marks. Other parameters giving certain amount of discretion to the appointing authority are also there. He has done everything in accordance with law and in good faith. But, the disciplinary authority was not satisfied with his explanation. They appointed an enquiry officer, who submitted a report finding him guilty. After following the due procedure, the disciplinary authority accepted the enquiry report and imposed the punishment of compulsory retirement from service which stood affirmed by the superior authorities. 3. While challenging the impugned orders the appellant raised seven grounds to attack them. They are narrated by the Tribunal in Paragraph 9 of Ext.P1 order, as per which, the Original Application filed by him was disposed of. The said paragraph reads as follows: “9. The main contentions of the applicant were (i) the third respondent, Chief Postmaster General, Kerala Circle is the appointing authority of the Applicant but the Annexure A1 penalty advice of compulsory retirement was issued by the 5 th respondent W.P.(C) No.35435/2007 3 (Director or Postal Services, Central Region), an Authority which is lower in rank than the Appointing Authority and therefore, the Annexure A1 is order is without jurisdiction and opposed to Article 311(1) of the Constitution of India and therefore, liable to be set aside (ii) no criterion has been laid down to assess the comparative merit, the selection should be based on the marks obtained in SSLC Examination (iii) no documentary evidence has been produced before the Inquiry Officer to show that the ED selection should be based strictly on marks in SSLC except the depositions of SW6 and SW7, who were the investigating officers. (iv) in the absence of any clear orders from the Director General who is the competent authority laying down the method and procedure for the selection of ED Agents, the assertions of SW6 and SW7 have no evidentiary value and are only to be treated as subjective views. (v) The letter dated 12.3.1993 by the Director General (Posts) produced by the applicant before the Inquiry Officer clearly shows that the criterion of selection based on marks in SSLC has been prescribed in the case of EDBPM and EDSPM only and no such stipulation in the case of other ED Agents and, therefore, except in the case of EDBPM and EDSPM the question of assessment of comparative merits of candidates, is left to the discretion of the W.P.(C) No.35435/2007 4 selecting authority who has independent and absolute power to exercise such discretion which is subject only tot he general principles of law governing such exercise of discretionary powers which none other than the reasonableness and objectivity. (vi) he failed to obtain a letter of declining the candidature with highest marks in SSLC because he was not aware of such a practice nor the rules stipulated such a course of action and it was only a bonafide mistake. (vii) The charges levelled against the applicant had arisen out of a complaint made by Shri.V.N.Krishnankutty, who alleged that the applicant had accepted bribe while selecting persons with lesser marks in SSLC examination. But the enquiry made by CBE SPE, Kochi found that the allegations are baseless and unfounded which shows that there was no extraneous consideration or ulterior motive in selecting persons with lesser marks in SSLC in preference to persons with higher marks.” 4. The petitioner submits while disposing of the Original Application by Ext.P1, the Tribunal made a sweeping observation in the following manner. W.P.(C) No.35435/2007 5 “The Inquiry Authority is the final fact finding authority and there are no grounds made out by the Applicant warranting the intervention of this Tribunal”. Thereafter, a few decisions of the Supreme Court were cited and the Original Application was dismissed. This is evident from paragraph 12, it is pointed out. 5. The learned counsel for the petitioner submitted that the Tribunal has failed to fairly deal with any of the seven contentions urged by him, with reference to the pleadings and materials on record. So, the impugned order is vitiated. We heard the learned counsel for the respondents also. Going by paragraph 12 of the impugned order, we notice that the criticism raised by the learned counsel for the petitioner against the manner of dealing with the contentions raised by him in the Original Application is correct. The Tribunal being a judicial authority has got a duty to deal fairly with all the issues raised by the applicant, having due regard to the materials on record. In this case, the Tribunal has failed to do that. So, the impugned W.P.(C) No.35435/2007 6 order Ext.P1 is vitiated. Accordingly, it is set aside. The Original Application Ext.P2 is remitted for fresh disposal by the Tribunal in accordance with law, in the light of the observations made by us herein above. We hope, the Tribunal will dispose of the matter, as expeditiously as possible. The writ petition is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (K.SURENDRA MOHAN, JUDGE) ps