GDS/CHQ/41/1/2009 Dated: 02-02-2009
Ms. Radhika Doraiswamy,
Secretary,
Department of Posts,
Dak Bhawan,
New Delhi – 110001
Subject: - Pay & allowances and service conditions of Gramin Dak Sevak employees-Reports of GDS Committee under Sri R.S.Nataraja Murti and Group of Officers under Chairmanship of Sri P.K.Gopinath Chief Postmaster General, Delhi.
Madam,
Kindly refer to our letter of even no dated 27-01-2009 on the above subject, addressed to the Hon'ble Minister of State for Communications & I.T. in which have dealt with the Pay and allowances portion of the reports of the GDS Committee and the Group of Officers. In this letter we discuss and explain the issue of "status" and judicial views thereon to make it clear that the reports of the two Committees (GDS Committee and Group of Officers) are at direct conflict with the judicial views.
At the outset we must submit that we had opposed the appointment of a Gramin Dak Sevaks Committee under a bureaucrat (serving or retired) and demanded a Pay-Committee under a retired Judge of a high court, because several legal and judicial issues are involved. You may kindly see that judicial declarations have been mercilessly twisted and an attempt has been made to over-ride the judicial declaration by suggesting certain illegalities. We discuss the same hereunder;-
1. (i) The Hon'ble Supreme Court in Rajamma's case [Superintendent of Post Offices etc v. P.K.Rajamma (1977) (3) SCC] have declared.
It is thus clear that an extra departmental agentis not a casual worker but holds a post under the administrative control of the state. It is apparent from the rules that the (sie) employment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no doubt, it is a post under the state…..(Emphasis added)
(ii) In Theyyam Joseph's case [Inspector of Post Offices Vaikam v. Theyyam Joseph (1996) 8.SCC 489] the Hon'ble Supreme Court has further clarified the declaration in Rajamma's Case thus:
It would thus be seen that the method of recruitment, the conditions of service, scale of Pay and conduct Rules regulating the service conditions of ED Agents are governed by statutory regulation. It is now settled law of this court that these employees are civil servants regulated by these conduct rules (emphasis added).
The Hon'ble Court there afterwith relation to decision whether these employees belonged to the category of work-men observed as:
Therefore, by necessary implication, they donot belong to the category of workmen attracting the provisions of the Act (Industrial Dispute Act, 947).
(iii) The second part of the declaration which is related to the belonging of these employees to the category of workmen came for further review in A.Srinivasa Rao's case [General Manager, Telecom v.A.Srinivasa Rao and others (1977).8 SCC 767] This case was about the definition of industry. Para 4 of the judgement begins thus:-
The only point for decision in this appeal is whether, the Telecom Department of the union of India is an industry within the meaning of the definition of "industry" in section 2(J) of the Industrial Dispute Act, 1947. Clarifying this point the Hon'ble Court in the above case, referred to the Bangalore water supply case [Bangalore water supply & sewage Board v A.Rajappa & others (1978) 2 SCC 213]. The Bangalore water supply case dealt at length with the meaning of "industry". The Hon'ble Court observed on this point of meaning of the definition of "industry" observed, this:-
"With respect, we are unable to subscribe to this view for the obvious reason that it is in direct conflict with the seven judge Bench decision in Bangalore water supply3 by which we are bound. It is needless to add that it is not permissible for us, or for that matter any Bench of lesser strength, to take a view contrary to that in Bangalore water supply³ or to bypass that decision so long it holds the field. More over, that decision was rendered long back-nearly two decades earlier and we find no reason to think other wise. Judicial discipline requires us to follow the decision in Bangalore water supply case³. We must, therefore, add that the decision in 'Theyyam Joseph and Bombay Telephone Canteen Employees Association² cannot be treated as laying down correct law. This being the only point for decision in the appeal, it must fail".
It may be seen that this judgement does not discuss or decide upon the status of ED employees as civil servants nor does it over-rule expressly the entire judgement in Theyyam Joseph's case.
(iv) The status of the E.D. employees (now Gramin Dak Sevak employees) and the decision in P.K. Rajamma's case has further been declared eloquently in the case Chet Ram v.Jit Singh (JT 2008 (12) SC 1). In Para 12.3 The Hon'ble Supreme Court observes and declares thus:
"3. The Extra Departmental Agents are government servants holding a civil post and are entitled to the protection of Article 311(2) of the constitution (See: Supdt. of Post Offices v .P.K.Rajamma). They are governed by separate set of rules, Viz., the Posts & Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 (hereinafter referred to as "the rules"). The central Civil Services (classification, control and Appeal) Rules, are not applicable to this category of employees in view of the notification dated 28-2-1957 issued by the Government of India under Rule 3(3) of the said Rules".
(v) What has been rule by the Hon'ble Supreme Court in A.Srinivasa Rao's case and in Bangalore water supply case is that even a government organisation can come under the definition of "industry" under section 2 (J) of the Industrial Dispute Act, 1947 and a government servant can be termed as 'workman' under certain circumstances or on condition of satisfying certain yardsticks as laid down in Bangalore water supply case and also referred to in A.Srinivasa Rao's case.
2(i) Sri R,S, Nataraja Murti has twisted and mis-interpreted the judgement in a way that suits him, differently in Paras 2.7.1, 27.2 and Para 2.8. The observation of the G.D.S. Committee of Sri R.S.Nataraja Murti in Para 2.9 in thus, in direct disregard of the declaration of the Supreme Court is Bangalore water supply case and in A.Srinivasa Rao's case and Chet Ram v.Jit Singh case. The said Para 2.9 of the G.D.S. Committee report reads thus;
"2.9 Gramin Dak Sevaks are governed by GDS (Conduct & Employment) Rules, 2001 which govern the conditions of engagement, conduct and discipline. Such, being the case they cannot simultaneously be governed by different set of provisions under Industrial Dispute Act. This anomalous position has created administrative problems in administrating the ED system As such it is necessary to make suitable amendments in the Industrial Dispute Act".
It may be seen, that the GDS Committee under Sri.Nataraja Murti has tried to over-turn the rulings of the Supreme Court in Bangalore water supply case as also the judgment in A.Srinivasa Rao's case. This is not only in direct conflict of the rulings of the Supreme Court but is also in disregard thereof.
(ii) Similarly the recommendation of Sri R.S.Nataraja Murti's GDS Committee in Para 2.9.1 is in total disregard of the rulings of the Supreme Court. The Industrial Dispute ACT, 1947 has vast implications and organisations and employees with different sets of regulations and conduct rules are covered under several sections of the Industrial Disputes Act. The guide lines and yard sticks have been laid down by the Supreme Court in Bangalore water supply case. The recommendations in Para 2.9.1 which run as follows are superfluous, illegal and in contempt of the rulings of the Supreme Court:
"2.9.1 The Department may approach the Nodal Department, Ministry of Labour & Employment for making suitable amendment in the provisions of Industrial Dispute Act 1947 for removing the anomalous position of GDS being governed by GDS (Conduct & Employment) 2001 and Industrial Dispute Act simultaneously".
This recommendation simply indicates the hollowness of approach and appreciation of rules and regulations by the G.D.S. Committee.
(iii) The recommendation in Para 2.10 tries to put words in the mouth of the judgement of the Supreme Court. This Para 2.10 runs as;-
"2.10 Gramin Dak Sevaks are not governed by CCS (Conduct) Rules 1964, CCS (Pension) Rules 1972, FRS & SRS, Central Civil Service (Recognition service Association) Rules 1993 which apply only to the regular government servants. The Gramin Dak Sevaks are governed by separate set of rules called the GDS (Conduct & Employment) Rules 2001 and EDA's (RSA) Rules 1995. The GDS and regular Employees of the government belong to two distinct and separate group. There is no parity in terms and conditions of employment between regular government employees and Gramin Dak Sevaks".
The Hon'ble Supreme Court, as is seen from the judgments in P.K.Rajamma's case, or in Joseph Theyyam case or in Chet Ram v.Jit Singh case, are aware of these facts and still have clarified and declared that the E.D. Employees are holders of civil post, and are civil servants and are Central Government employees. The G.D.S. Committee or Sri R.S.Nataraja Murti is not competent of over-rule the Supreme Court nor is the Group of Officers under Sri P.K.Gopinath, which has concurred with the GDS Committee, competent to do so.
The recommendations in Para 2.9; 2.9.1 and 2.10 of the GDS Committee are superfluous, in contempt of the declarations of the Hon'ble Supreme Court and though have been concurred with by the Group of Officers under Sri Gopinath must be scrapped. We must point out here that in obedience to judicial pronouncement, the due status of Gramin Dak Sevak Employees must be conferred on them. Any attempt to tinker with the judicial pronouncement will not be in any body's interest.
3. (i) The Hon'ble Supreme Court in P.K.Rajamma's Case have clearly and categorically declared as;-
"It is thus clear that an extra Departmental agent is not a casual worker but he holds a post under the administrative control of the state (sic). It is apparent from the rules that the employment of an extra departmental agent is in a post which exists "apart from" (sic) the person who happens to fill it at any particular time.
It may be seen that word in the judgment is "Employment" and not engagement. The attempt of Sri Nataraja Murti in recommending in Para 18.15.9 as "The GDS (Conduct & Employment) Rules 2001 may be termed as "GDS (Conduct & Engagement) Rules" is not only an attempt to dilute but over-ride the rulings of the Supreme Court. This recommendation must be scrapped in toto or it will amount to contempt of the Supreme Court meant to hurt the interests of the GDS employees. It is surprising that the Group of Officers concurs and advances arguments which show that the real intention of the GDS Committee is to bind the GDS employees in shackles rather than improve the conditions.
Such an attitude helps none and therefore this recommendation must be scrapped all together.
4. In order to avoid any complication and tinkering with the judiciary and in order to ensure obedience to judicial pronouncements its is imperative that the judgment in P.K.Rajamma's case as further clarified and declared in Theyyam Joseph's case and in case of Chet Ram v.Jit Singh, due status of Central Civil Servant (not full time) should be conferred on the GDS employees. This will ensure better confidence, better incentive, and firmer sense of belief in the GDS employees and better relations between the administration and the employees.
5. We are separately furnishing justification for the scales and other emoluments and benefits as demanded by us in our letter of even No. dated 27.01.2009 as rock bottom. We shall also be discussing and explaining the conduct, discipline and other things in that letter.
We hope, that these submissions will be meaningfully taken into consideration to ensure justice and compliance to judicial orders.
With regards,
Yours faithfully,
S.S.Mahadevaiah,
General Secretary.
Ms. Radhika Doraiswamy,
Secretary,
Department of Posts,
Dak Bhawan,
New Delhi – 110001
Subject: - Pay & allowances and service conditions of Gramin Dak Sevak employees-Reports of GDS Committee under Sri R.S.Nataraja Murti and Group of Officers under Chairmanship of Sri P.K.Gopinath Chief Postmaster General, Delhi.
Madam,
Kindly refer to our letter of even no dated 27-01-2009 on the above subject, addressed to the Hon'ble Minister of State for Communications & I.T. in which have dealt with the Pay and allowances portion of the reports of the GDS Committee and the Group of Officers. In this letter we discuss and explain the issue of "status" and judicial views thereon to make it clear that the reports of the two Committees (GDS Committee and Group of Officers) are at direct conflict with the judicial views.
At the outset we must submit that we had opposed the appointment of a Gramin Dak Sevaks Committee under a bureaucrat (serving or retired) and demanded a Pay-Committee under a retired Judge of a high court, because several legal and judicial issues are involved. You may kindly see that judicial declarations have been mercilessly twisted and an attempt has been made to over-ride the judicial declaration by suggesting certain illegalities. We discuss the same hereunder;-
1. (i) The Hon'ble Supreme Court in Rajamma's case [Superintendent of Post Offices etc v. P.K.Rajamma (1977) (3) SCC] have declared.
It is thus clear that an extra departmental agentis not a casual worker but holds a post under the administrative control of the state. It is apparent from the rules that the (sie) employment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is no doubt, it is a post under the state…..(Emphasis added)
(ii) In Theyyam Joseph's case [Inspector of Post Offices Vaikam v. Theyyam Joseph (1996) 8.SCC 489] the Hon'ble Supreme Court has further clarified the declaration in Rajamma's Case thus:
It would thus be seen that the method of recruitment, the conditions of service, scale of Pay and conduct Rules regulating the service conditions of ED Agents are governed by statutory regulation. It is now settled law of this court that these employees are civil servants regulated by these conduct rules (emphasis added).
The Hon'ble Court there afterwith relation to decision whether these employees belonged to the category of work-men observed as:
Therefore, by necessary implication, they donot belong to the category of workmen attracting the provisions of the Act (Industrial Dispute Act, 947).
(iii) The second part of the declaration which is related to the belonging of these employees to the category of workmen came for further review in A.Srinivasa Rao's case [General Manager, Telecom v.A.Srinivasa Rao and others (1977).8 SCC 767] This case was about the definition of industry. Para 4 of the judgement begins thus:-
The only point for decision in this appeal is whether, the Telecom Department of the union of India is an industry within the meaning of the definition of "industry" in section 2(J) of the Industrial Dispute Act, 1947. Clarifying this point the Hon'ble Court in the above case, referred to the Bangalore water supply case [Bangalore water supply & sewage Board v A.Rajappa & others (1978) 2 SCC 213]. The Bangalore water supply case dealt at length with the meaning of "industry". The Hon'ble Court observed on this point of meaning of the definition of "industry" observed, this:-
"With respect, we are unable to subscribe to this view for the obvious reason that it is in direct conflict with the seven judge Bench decision in Bangalore water supply3 by which we are bound. It is needless to add that it is not permissible for us, or for that matter any Bench of lesser strength, to take a view contrary to that in Bangalore water supply³ or to bypass that decision so long it holds the field. More over, that decision was rendered long back-nearly two decades earlier and we find no reason to think other wise. Judicial discipline requires us to follow the decision in Bangalore water supply case³. We must, therefore, add that the decision in 'Theyyam Joseph and Bombay Telephone Canteen Employees Association² cannot be treated as laying down correct law. This being the only point for decision in the appeal, it must fail".
It may be seen that this judgement does not discuss or decide upon the status of ED employees as civil servants nor does it over-rule expressly the entire judgement in Theyyam Joseph's case.
(iv) The status of the E.D. employees (now Gramin Dak Sevak employees) and the decision in P.K. Rajamma's case has further been declared eloquently in the case Chet Ram v.Jit Singh (JT 2008 (12) SC 1). In Para 12.3 The Hon'ble Supreme Court observes and declares thus:
"3. The Extra Departmental Agents are government servants holding a civil post and are entitled to the protection of Article 311(2) of the constitution (See: Supdt. of Post Offices v .P.K.Rajamma). They are governed by separate set of rules, Viz., the Posts & Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 (hereinafter referred to as "the rules"). The central Civil Services (classification, control and Appeal) Rules, are not applicable to this category of employees in view of the notification dated 28-2-1957 issued by the Government of India under Rule 3(3) of the said Rules".
(v) What has been rule by the Hon'ble Supreme Court in A.Srinivasa Rao's case and in Bangalore water supply case is that even a government organisation can come under the definition of "industry" under section 2 (J) of the Industrial Dispute Act, 1947 and a government servant can be termed as 'workman' under certain circumstances or on condition of satisfying certain yardsticks as laid down in Bangalore water supply case and also referred to in A.Srinivasa Rao's case.
2(i) Sri R,S, Nataraja Murti has twisted and mis-interpreted the judgement in a way that suits him, differently in Paras 2.7.1, 27.2 and Para 2.8. The observation of the G.D.S. Committee of Sri R.S.Nataraja Murti in Para 2.9 in thus, in direct disregard of the declaration of the Supreme Court is Bangalore water supply case and in A.Srinivasa Rao's case and Chet Ram v.Jit Singh case. The said Para 2.9 of the G.D.S. Committee report reads thus;
"2.9 Gramin Dak Sevaks are governed by GDS (Conduct & Employment) Rules, 2001 which govern the conditions of engagement, conduct and discipline. Such, being the case they cannot simultaneously be governed by different set of provisions under Industrial Dispute Act. This anomalous position has created administrative problems in administrating the ED system As such it is necessary to make suitable amendments in the Industrial Dispute Act".
It may be seen, that the GDS Committee under Sri.Nataraja Murti has tried to over-turn the rulings of the Supreme Court in Bangalore water supply case as also the judgment in A.Srinivasa Rao's case. This is not only in direct conflict of the rulings of the Supreme Court but is also in disregard thereof.
(ii) Similarly the recommendation of Sri R.S.Nataraja Murti's GDS Committee in Para 2.9.1 is in total disregard of the rulings of the Supreme Court. The Industrial Dispute ACT, 1947 has vast implications and organisations and employees with different sets of regulations and conduct rules are covered under several sections of the Industrial Disputes Act. The guide lines and yard sticks have been laid down by the Supreme Court in Bangalore water supply case. The recommendations in Para 2.9.1 which run as follows are superfluous, illegal and in contempt of the rulings of the Supreme Court:
"2.9.1 The Department may approach the Nodal Department, Ministry of Labour & Employment for making suitable amendment in the provisions of Industrial Dispute Act 1947 for removing the anomalous position of GDS being governed by GDS (Conduct & Employment) 2001 and Industrial Dispute Act simultaneously".
This recommendation simply indicates the hollowness of approach and appreciation of rules and regulations by the G.D.S. Committee.
(iii) The recommendation in Para 2.10 tries to put words in the mouth of the judgement of the Supreme Court. This Para 2.10 runs as;-
"2.10 Gramin Dak Sevaks are not governed by CCS (Conduct) Rules 1964, CCS (Pension) Rules 1972, FRS & SRS, Central Civil Service (Recognition service Association) Rules 1993 which apply only to the regular government servants. The Gramin Dak Sevaks are governed by separate set of rules called the GDS (Conduct & Employment) Rules 2001 and EDA's (RSA) Rules 1995. The GDS and regular Employees of the government belong to two distinct and separate group. There is no parity in terms and conditions of employment between regular government employees and Gramin Dak Sevaks".
The Hon'ble Supreme Court, as is seen from the judgments in P.K.Rajamma's case, or in Joseph Theyyam case or in Chet Ram v.Jit Singh case, are aware of these facts and still have clarified and declared that the E.D. Employees are holders of civil post, and are civil servants and are Central Government employees. The G.D.S. Committee or Sri R.S.Nataraja Murti is not competent of over-rule the Supreme Court nor is the Group of Officers under Sri P.K.Gopinath, which has concurred with the GDS Committee, competent to do so.
The recommendations in Para 2.9; 2.9.1 and 2.10 of the GDS Committee are superfluous, in contempt of the declarations of the Hon'ble Supreme Court and though have been concurred with by the Group of Officers under Sri Gopinath must be scrapped. We must point out here that in obedience to judicial pronouncement, the due status of Gramin Dak Sevak Employees must be conferred on them. Any attempt to tinker with the judicial pronouncement will not be in any body's interest.
3. (i) The Hon'ble Supreme Court in P.K.Rajamma's Case have clearly and categorically declared as;-
"It is thus clear that an extra Departmental agent is not a casual worker but he holds a post under the administrative control of the state (sic). It is apparent from the rules that the employment of an extra departmental agent is in a post which exists "apart from" (sic) the person who happens to fill it at any particular time.
It may be seen that word in the judgment is "Employment" and not engagement. The attempt of Sri Nataraja Murti in recommending in Para 18.15.9 as "The GDS (Conduct & Employment) Rules 2001 may be termed as "GDS (Conduct & Engagement) Rules" is not only an attempt to dilute but over-ride the rulings of the Supreme Court. This recommendation must be scrapped in toto or it will amount to contempt of the Supreme Court meant to hurt the interests of the GDS employees. It is surprising that the Group of Officers concurs and advances arguments which show that the real intention of the GDS Committee is to bind the GDS employees in shackles rather than improve the conditions.
Such an attitude helps none and therefore this recommendation must be scrapped all together.
4. In order to avoid any complication and tinkering with the judiciary and in order to ensure obedience to judicial pronouncements its is imperative that the judgment in P.K.Rajamma's case as further clarified and declared in Theyyam Joseph's case and in case of Chet Ram v.Jit Singh, due status of Central Civil Servant (not full time) should be conferred on the GDS employees. This will ensure better confidence, better incentive, and firmer sense of belief in the GDS employees and better relations between the administration and the employees.
5. We are separately furnishing justification for the scales and other emoluments and benefits as demanded by us in our letter of even No. dated 27.01.2009 as rock bottom. We shall also be discussing and explaining the conduct, discipline and other things in that letter.
We hope, that these submissions will be meaningfully taken into consideration to ensure justice and compliance to judicial orders.
With regards,
Yours faithfully,
S.S.Mahadevaiah,
General Secretary.
