CIVIL WRIT JURISDICTION CASE No.8968 OF 2005 ( In the matter of an application Under Article 226 of the Constitution of India) ****** 1. Union of India, through the Director General (Posts) Dak Bhawan, New Delhi-110001. 2. The chief Post Master General, Bihar Circle, Patna. 3. The Superintendent of Post Offices, Bhagalpur Division, Bhagalpur. 4. The Sub-divisional Inspector of Post Offices Bhagalpur South, Sub- division, Sultanganj -----Petitioners. Versus 1. The Central Administrative Tribunal, Patna Bench, Patna. 2. Siya Ram Singh, S/O late Anirudh Singh, R/o Vill.- Nonsar, P.O.Nonsar, Via-Sultanganj, P.S. Sultanganj, Dist.-Bhagalpur, Ex. (provisional) EDPM, EDPO Nonsar account with Sultanganj, S.O. in Bhagalpur Postal Division, Bhagalpur. ----Respondent 1 set. 3. Kunj Bihari Singh S/O late Sheo Pujan Singh R/O Vill.- Nonsar, P.S. Sultanganj, Dist. Bhagalpur, At present EDPM- Nonsar EDPO, in Account with Sultanganj S.O. in Bhagalpur Postal Division, Dist. Bhagalpur. ---- Respondent II set. ****** For the Petitioners : Dr. Mayanand Jha, Advocate. For respondent no.2 : Mr. Ramakant Sharma, Sr.Advocate. For respondent no.3 : None ****** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S.K.Katriar & K.K.Mandal, J.J., This writ petition is directed against the order dated 08.02.2005 (Annexure-7), passed by the Central Administrative Tribunal, Patna Bench, in O.A. No. 542 of 1998 (Siya Ram Singh Vs. Union of Indian and Ors.), whereby the original 2 application preferred by respondent no.2 herein has been allowed with the observations made in paragraph no.7 of the order. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. Respondent no.3 was duly appointed Extra Departmental Branch Post Master ( „E.D.B.P.M.‟ for short), Nonsar Branch Post office, District – Bhagalpur. It is alleged that he unauthorizedly absented himself as a result of which respondent no.2 was provisionally appointed as E.D.B.P.M., vide order dated 01.07.1992 (Annexure-2). He worked as such for six years, whereafter he was visited with the order dispensing with his services on the ground that the departmental proceeding against respondent no.3 for alleged unauthorized absence had been concluded, he had been exonerated, and had been reinstated in service. As a result of the same, respondent no.2 had to give way to respondent no.3, leading to the aforesaid O.A. No. 542 of 1998, the same has been disposed of with the observations that in view of the decision that respondent no.2 worked for nearly six years, and has crossed the age bar for Government service, he may be considered for appointment for the same post in nearby area. The Union of India and others have preferred this writ petition challenging this observation made in favour of respondent no.2. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. It 3 appears to us that respondent no.3 had absented himself for sometime, but was exonerated in the departmental proceedings and was directed to be reinstated. Six years were taken in concluding the departmental proceeding and, in the meanwhile, the respondent no.2 was selected and had functioned on the post. Before we proceed further, we would like to notice the terms and conditions on which respondent no.2 was appointed by order dated 01.07.1992. The text of the order is reproduced herein below: “Bharat Sarkar Dak Vibhag Office of the Suptd. of Post Offices, Bhagalpur Division Bhagalpur. Memo No. A-259 Dated, at Bhagalpur,the 1-7-92 LETTER OF APPOINTMENT Shri Siyaram Singh is hereby appointed as BPM Nonsar provisionally (name of the Office) and shall be paid such allowances as admissible from time to time. 2. Shri Siyaram Singh should clearly understand that his employment as EDBPM Nonsar shall be in the nature of contract and liable to be terminated by notifying the other in waiting, and that he shall also be governed by the Posts and Telegraph Extra Departmental Agents ( Conduct and Services) Rules, 1964, as amended from time to time. 3. If these conditions are acceptable to him, he should communicate his acceptance in the proforma enclosed herewith. Sd/ Supdt. Of Post Offices Bhagalpur Division.” It is thus evident on a plain reading of the letter of appointment that respondent no.2 was provisionally appointed and it was made clear to him that it was in the nature of a 4 contract, and was liable to be terminated. “….by notifying the other in waiting...” It is thus evident that the services of respondent no.2 was entirely provisional, of temporary nature, and did not create any enforceable right in his favour. His services could be dispensed with for a valid reason including reinstatement of the person “in waiting”. It further appears to us that respondent no.3 was exonerated in the departmental proceeding and had, therefore, to be reinstated in service. The decision of the authorities to dispense with the services of respondent no.2 in the event of reinstatement of respondent no.3 cannot, therefore, be faulted. Indeed the Tribunal also has to this extent rightly upheld the decision of the authorities. 4. This takes us on to the main grievance raised by the petitioners and is rooted in paragraph no.3 of the order of the learned Tribunal. The same is reproduced herein below:- “3. The main ground on which the applicant has challenged Annexure A/2 is that he was appointed substantively by respondent no.3 after observing all formalities and he continued on the post for more than 6 years. Even then, respondent no.4 i.e. Sub-Divisional Inspector of post Offices, Bhagalpur, who is an officer of lower rank than the respondent no.3, had no right to order the applicant to hand over charge of the post. The applicant thereafter made a representation to the respondent no.3 on 27.8.1998 under registered post with copy to Chief Post Master General, Bihar Circle, Patna as at Annexure A/3. He also challenged the authority of order passed by respondent no.4 and sent the same to Director General, Department of Posts, New Delhi protesting against the order. It has been submitted on behalf of the applicant that he was entitled to take shelter of Article 311 (2) of the Constitution of India. Besides, his virtual removal by an authority lower than the appointing authority was also in violation of Article 311(1) of 5 the Constitution of India. The applicant has also referred to Section 25F read with Section 25 FFF of the Industrial Disputes Act, 1947 in support of his contention.” It appears to us that the issue is governed by paragraph no. 15(iii) of the relevant Rules, the extracts of which is marked Annexure-6 to the writ petition. Rule 15 is reproduced herein below: “(15) Provisional appointment of ED Agents.- It has come to the notice of this office that provisional appointments made to ED posts are being allowed to continue for indefinite periods and when regular appointments are made, the provisionally appointed persons do not readily hand over the charge. The following instructions are issued in this regard:- (i) As far as possible, provisional appointments should be avoided. Provisional appointments should not be made to fill the vacancies caused by the retirement of ED Agents. In such cases, the Appointing Authority should take action well in time before the retirement of the incumbent ED Agent, to select a suitable successor. (ii) Wherever possible, provisional appointments should be made only for specific periods. The appointed person should be given to understand that the appointment will be terminated on expiry of the specified period and that he will have no claim for regular appointment. Where a new Post Office is opened or where a new post is created or where an ED Agent dies while in service or resigns from his post and it is not possible to make regular appointment immediately, a provisional appointment should be made for a specific period. The offer for appointment should be in the form annexed (Annexure-A) (iii) Where an ED Agent is put off duty pending departmental or judicial proceedings against him and it is not possible to ascertain the period by which the departmental/ judicial proceedings are likely to be finalized, a provisional appointment may be made, in the form annexed (Annexure-B). It should be made clear to the provisionally appointed person that if ever it is decided to reinstate the previous incumbent, the 6 provisional appointment will be terminated and that he shall have no claim to any appointment.” It is evident that the case of the petitioner is entirely covered by Sub-rule (iii) of rule 15. We are, therefore, of the view that there was no scope for the Tribunal to make the compassionate observation made in paragraph no.7 of the order. 5. We are also reminded of the long line of judgments to the effect that needless compassion should not be injected in judicial proceedings, which has the tendency to tilt the scales of justice. One of us ( S.K.Katriar, J.) had the occasion to recapitulate the line of cases in the judgment of Ram Dhani Singh vs. State of Bihar & Ors. reported in 2007(4) PLJR 332, paragraph no.15 to 19 of which was reproduced herein below: “15.The Judgment of the Supreme Court in the case of State Bank of India vs. Ramesh Dinkar Punde, reported in (2006)7 SCC 212, is relevant in the present context. That was a case where the enquiry officer had held that the charges had been proved and the disciplinary authority dismissed him from service. The statutory appeal was rejected. The High Court on reappreciation of evidence reversed the findings of the enquiry officer, and set aside the orders of the disciplinary authority and the appellate authority. The supreme Court reversed the judgment of the High Court, restored the order of punishment, and proceeded to observe that it is impermissible for the High Court to reappreciate the evidence which has been considered by the inquiry officer, disciplinary authority, and the appellate authority. The High Court erred both in law and on facts in interfering with the findings of the inquiry officer, the disciplinary authority, and the appellate authority, by acting as a court of appeal and reappreciating the evidence. The 7 Supreme Court quoted with approval the observations, of an earlier judgment in Govt. of A.P. Vs. Mohd. Nasrullah Khan, (2006)2 SCC 373, which reads as follows:- “Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority.” 15.1) The Supreme Court also quoted with approval the following observations in its earlier judgment in the case of Union of India vs. Sardar Bahadur, reported in (1972)4 SCC 618:- “ A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that lender was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. The Letters Patent Bench had the same power of dealing with all questions, either of fact or of law arising in the appeal, as the Single Judge of the High Court. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterized as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts.” 16. Paragraphs 21 and 22 of the judgment in State Bank of India vs. Ramesh Dinkar Punde (supra), are equally relevant in the present context and are set out hereinbelow for the facility of quick reference:- “21. Confronted with the facts and the position of law, learned counsel for the respondent submitted that leniency may be shown to the respondent having regard to long years of service rendered by the respondent to the Bank. We are unable to countenance such submission. As already said, the respondent being a bank officer, holds a position of trust where honesty and integrity are in-built requirements of functioning and it would not be proper to deal with the matter leniently. The respondent was a Manager of the Bank and it needs to be emphasized that in the banking business absolute 8 devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer so that the confidence of the public/depositors is not impaired. It is for this reason that when a bank officer commits misconduct, as in the present case, for his personal ends and against the interest of the bank and the depositors, he must be dealt with iron hands and he does not deserve to be dealt with leniently.” “22. In TNCS Corpn. Ltd. vs. K. Meerabai, (2006)2 SCC 255, such plea had been rejected by this court. It was pointed out as SCC p. 267, para 29 as under: “29. Mr. Francis also submitted that a sum of Rs. 33,436.85 being 5% of the total loss of Rs. 6,88,737.12 is sought to be recovered from the respondent and that the present departmental proceedings is the only known allegation against the respondent and there was no such allegation earlier and, therefore, a lenient view should be taken by this Court, and relief prayed for by both the parties can be suitably moulded by this Court. We are unable to agree with the above submission which, in our opinion, has no force. The scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money misappropriated. In the instant case, the respondent employee is found guilty of misappropriating the Corporation funds. There is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment awarded by the disciplinary and Appellate Authority.”( Emphasis added) 16.1) In other words, the Supreme Court observed that such cases of misconduct should be dealt with iron hands, the delinquent employee does not deserve to be dealt with leniently, and sympathy or generosity as a factor is impermissible in judicial review. There is no place for generosity or sympathy in judicial forums, and interference with the quantum of punishment awarded by the departmental authorities is impermissible. 17. The Supreme Court has dealt with this issue in its judgment in the case of Divisional Controller, NEKRTC vs. H. Amaresh, reported 9 in 2006(3) PLJR(SC) 409. That was a case where the delinquent had been found guilty of grave miscondcut and, after a departmental proceeding was dismissed from service. The Labour Court ordered for reinstatement despite holding the employee guilty of pilferage. The High Court affirmed the order of the Labour Court. The Supreme Court restored the order of dismissal passed by the disciplinary authority, and proceeded to observe that the orders of the Labour Court and the High Court were contrary to law, and there is no place for misplaced sympathy in judicial forums for interfering with the punishment. 18. Reference may also be made to the constitution Bench judgment of the Supreme Court in Secretary, State of Karnataka vs. Uma Devi, reported in(2006)4 SCC 1 [: 2006(2) PLJR (SC) 363], which dealt with the question of regularization of back-door entrants in Government service. Their Lordships quoted with approval the observations of Farwell, L.J., in Latham vs. Ricahard Johnson & Nephew Ltd. (discussed in paragraph 19 hereinbelow). The same was also quoted with approval by the Supreme Court in its judgment in the case of Umarani vs. Registrar, Co-operative Societies, reported in (2004)7 SCC 112. Paragraph-36 of the judgment in Uma Devi (supra) is setout hereinbelow for the facility of quick reference:- “36. This Court also quoted with approval ( at SCC p.131, para 69) the observations of this Court in Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh, to the effect: (SCC p.144, para 36) “36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution, this Court ordinarily would not pass an order which would be in contravention of a statutory provision”. This decision kept in mind the distinction between “regularization” and “permanency”, and laid down that regularization is not and cannot be the mode of recruitment by any State. It also held that regularization cannot give permanence to an employee whose services are ad hoc in nature.” 19. Reference may be made to the judgment 10 of the Court of Appeal in England in the case of Latham vs. Johnson & Nephew, reported in 1911-13 All. E. R. 117. The defendants were the owners of a piece of unfenced waste ground, on which to their knowledge and with their permission children had been in the habit of playing. Early one morning a heap of stones was deposited on the land by the defendants’ servants, and soon after, while on the land alone, the plaintiff, a child under three years of age, was injured by one of the stones falling on her hand. In an action brought on behalf of the plaintiff for damages for his injury, it was held that the defendants were not liable. It was further held that “…. we must be careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o’ the wisp to take as a guide in the search for legal principles…” 6. We, therefore, entirely disagree with the approach of the learned Tribunal in making the observations for consideration of the case of respondent no.2 for alternative employment. The observation made in paragraph no.7 of the order of the learned Tribunal is, therefore, expunged. The writ petition is accordingly allowed. Patna High Court, Dated the 17th March, 2010 Sym/NAFR (S.K.Katriar,J.) ( Kishore K. Mandal, J.)