Decided on November 18,1971

A.SURYA RAO Appellant


Obul Reddi, J. - (1.)The petitioner is a Branch Postmaster at Gonapaputtuga, Ichapuram taluk, Srikakulam district since 31st January, 1964. He Was removed from service on two charges: (1) while functioning as Branch Postmaster, he did not prepare the daily accounts and allowed others to prepare the accounts in contravention of the provisions of B.O. Rule 104 (a); and (2) he absented himself from duty without applying for leave on certain dates, thereby violating the provisions of B.O. Rule 50 read with D. C. letter No. 43-15/1965 PEN dated 31st March, 1969. An enquiry was conducted; but after the enquiry, he was not given any show-cause notice as to why the penalty proposed should not be imposed ; in other words, he was not given an opportunity to make his representation against the proposed punishment of removal from service. This order of removal Was upheld on appeal by the Director of Postal Services.
(2.)Among other contentions, Mr. Poornaiah, the learned Counsel for the petitioner, contends that the petitioner being a Branch Postmaster is a civil servant or holding a Civil Post under the Union and is, therefore, entitled to the protection of Article 311 (2) of the Constitution. This is disputed by the learned Standing Counsel for the Central Government Mr. Subrahmanya Reddy. It is the case of the respondents that the Branch Postmaster is only an Extra Departmental Agent, who is not paid any salary and whose appointment is in the nature of a contract. In the Rules relating to the conduct and service of the Posts and Telegraphs Extra Departmental Agents, ' Employee' is defined as the person employed as an Extra Departmental Agent and ' Extra Departmental Agent' means ' an Extra Departmental Branch Postmaster' as well. The appointing authority in respect of an Extra Departmental Branch Postmaster is the Senior Superintendent or Superintendent of Post Officers. While he is not entitled to any pension under rule 4, he is entitled to such leave as may be determined by the Government from time to time under rule 5. His services may be terminated on administrative grounds by the appointing authority and such other penalties as are referred to in rule 7 may be imposed, which include recovery from allowance of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders, removal from service, which shall not be disqualification for future employment, and dismissal from service Which shall ordinarily be a disqualification for future employment. Rule 8 lays down the procedure for imposing a penalty, and it reads : " 8. Procedure for imposing a penalty : (1) No order imposing a penalty shall be passed except after the employee is informed in Writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation he may wish to make. (a) The record of proceedings shall include:- (i) a copy of the intimation to the employee of the proposal to take action against him; (if) a copy of statement of allegations communicated to him; (iii) his representation, if any; (iv) the orders on the case together with the reasons therefor." It would be seen that these rules do not entitle an Extra Departmental Branch Postmaster for the issuance of a second show cause notice before the penalty of removal of service is imposed. However if the Extra Departmental Branch Postmaster is deemed to be "a civil servant " within the meaning of Article 311 (2) of the Constitution, he would be entitled to such notice. It is, therefore, necessary to see whether the petitioner, who is admittedly an Extra Departmental Branch Postmaster, is a "civil servant". In order to determine whether an employee is a civil servant within the meaning of Article 311 (2) it is not the nomenclature that is decisive of the matter.
(3.)The Supreme Court in State of U.P. v. A.N. Singh, (1964) 2 S.C.J. 590 : (1964) 7 S.C.R. 89: A.I.R. 1965 S.C. 360. has laid down the tests for determining whether a particular employee could be deemed to be a "civil servant" within the meaning of Article 311 (2) of the Constitution. The tests laid down are: " In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinarily the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation imports the power not only to direct the doing of some work but also the power to direct the manner in which the work is to be done." Having regard to those principles, their Lordships held that even a Tahsildar, who was appointed by a Government Treasurer in the Cash Department in the State of Uttar Pradesh to assist him in the discharge of his duties, was a "civil servant" of the State holding a specific post. Their Lordships noted that the Tahsildar was appointed by the Government Treasurer, who was authorised in this behalf to assist him in the discharge of his official duties. Payment of remuneration to the Tahsildars is for services rendered in the " cashier department of the District treasury" of the State. The Tahsildars receive their remuneration directly from the State, and are subject to the control of the District Officers in the matter of transfer, removal and disciplinary action. Their Lordships observed : Employment of Tahsildars being for the purpose of carrying out the work of the State, even though a degree of control is exercised by the Government Treasurer and the appointment is in the first instance made by the Treasurer subject to the approval of the District Officers, it must be held that the Tahsildar is entitled to the protection of Article 311 of the Constitution." These principles were reiterated in a subsequent decision in State of Assam v. Kanakchandra, (1967) 1 S.C.R. 679: (1967) 2 S.C.J. 461: A.I.R. 1967 S.C. 884.. That was a case of a " Mauzadar" who was appointed to assist in the collection of land revenue in the Assam Valley. The " Mauzadar" was not a wholetime employee and was not paid any specified salary, but was only allowed a commission on the collections. He was held to be holding a " civil post" within the meaning of Article 311 of the Constitution. In coming to that conclusion, their Lordships observed at p. 886: " There is no formal definition of "Post" and " Civil Post". The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Article 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State, see marginal note to Article 311. In Article 311, a member of a Civil Service of the Union or an All-India Service or a Civil Service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State There is a relationship of master and servant between the State and person said to be holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances, and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State Judged in this light, a Mauzadar in the Assam Valley is the holder of a Civil Post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government. But having regard to the existing system of his recruitment, employment and functions, he is a servant and a holder of a civil post under the State." Applying these tests, it is seen that the petitioner, an Extra Departmental Branch Postmaster, is one who is appointed by the Senior Superintendent or Superintendent of Post Offices. He is subject to the disciplinary control of the authorities mentioned in the rules referred to above and his method of work is regulated by the instructions issued by the department. He receives remuneration fixed by the Government. The appointing authority has power to remove or dismiss him and fill up the vacancies by fresh selections. He satisfied all the tests that are laid down by the Supreme Court to determine whether he holds a civil post.

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