Union of India v. M.Kandasamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20-1-2009CORAMTHE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.24407 of 2008andM.P.No.1 of 20081.Union of India rep. By The Postmaster General Central Region, (T.N.) Tiruchirappalli 620 001.2.The Superintendent of Post Office Karur Division Karur 639 001.3.The Inspector of Posts Kulithalai Sub Division Kulithalai 639 104... Petitionersvs1.M.Kandasamy Gramin Dak Sevak Mail Deliverer Sathiyamangalam Branch Officer Vaigainallur Sub Officer - 639 120.2.The Registrar Central Administrative Tribunal Madras Bench, City Civil Court Buildings, High Court Campus, Chennai 600 104... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for a writ of certiorari to call for the recordsrelating to the impugned order dated 26.2.2008 passed in O.A.No.333of 2007 of the Central Administrative Tribunal (Madras Bench) andquash the same.For Petitioners: Mr.A.P.Balasubramanian, C.G.S.CFor Respondents: Mr.C.K.M.Appaji for R1 R2 - Tribunal https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by P.K.MISRA, J.)Heard Mr.A.P.Balasubramanian for the petitioners andMr.C.K.M.Appaji for the first respondent. 2.The present respondent No.1 was the Gramin Dak Sevak (MailDeliverer) under the present petitioners. An order of suspensionnamely "put off duty", was passed on 22.9.2004. It was indicated insuch order that he will get ex gratia compensation equal to 25% ofhis TRCA together with admissible DA in accordance with Rule 12(3) ofthe Department of Posts GDS (Conduct and Employment) Rules 2001.Subsequently, even before the initiation of formal disciplinaryproceeding by framing a charge, the suspension order was revoked byorder dated 31.8.2005. Thereafter, the present respondent No.1 filedO.A.No.333 of 2007 for issuing a direction to the present petitionersto regularize the period of put off duty from 22.9.2004 to 31.8.2005.In such Original Application, the present petitioners took a standthat the departmental proceeding was contemplated, and the matter wasunder preliminary investigation, and therefore, the question ofregularization of the period would be considered only after thedepartmental proceeding.3.The Tribunal by taking into consideration the fact that nodepartmental proceeding had formally been initiated, inasmuch as theformal charge had not been framed and there was no fault on the partof the applicant (present respondent No.1) regarding the initiationof the departmental proceeding, directed that for the entire period,the concerned person should be given the full payment. Such order isquestioned in the present writ petition at the instance of thedepartment.4.Learned Counsel for the petitioners submitted that as per Rule12(3) of the Department of Posts GDS (Conduct and Employment) Rules2001, during the period of suspension, the concerned employee will bepaid compensation of 25% for the first 90 days, and thereafter, suchamount can be increased upto 50% at the discretion of the concernedauthorities, and therefore, there was no justification for theTribunal to pass an order regarding payment of the entire amount. Itis also brought to our notice that subsequently, a charge memo hasbeen issued on 30.5.2008.5.Learned Counsel for the first respondent on the other handsubmitted that at the time when suspension order was passed, thedepartmental proceeding had not been actually initiated, and chargememo had not been issued, and therefore, the Tribunal was justifiedin passing the order. 6.Having heard the Counsel for both the parties, we feel that theorder of the Tribunal is required to be modified in order to make itconsistent with Rule 12 which is quoted hereunder. "12.Put-off duty(1) The Appointing Authority or any authority to which the https://hcservices.ecourts.gov.in/hcservices/ Appointing Authority is subordinate or any other authorityempowered in that behalf by the Government, by general orspecial order, may put a Sevak off duty:(a) Where a disciplinary proceeding against him iscontemplated or is pending; or(b) Where a case against him in respect of anycriminal offence is under investigation, enquiry ortrial:Provided that in cases involving fraud or embezzlement, theSevak holding any post specified in the Schedule to theserules may be put-off duty by the Inspector of Post Officesor the Assistant Superintendent of Post Offices of the Sub-Division, as the case may be, under immediate intimation tothe Appointing Authority.(2) An order made by the Inspector of Post Offices or theAssistant Superintendent of Post Offices as the case may be,of the Sub-Division under sub-rule (1) shall cease to beeffective on the expiry of fifteen days from the date ofsuch order unless earlier confirmed or cancelled by theAppointing Authority or the authority to which theAppointing Authority is subordinate.(3) A Sevak shall be entitled per month for the period ofput-off duty to an amount of compensation as ex gratia equalto 25% of his/her Time Related Continuity Allowance togetherwith admissible Dearness Allowance:Provided that where the period of put-off duty exceeds 90days, the Appointing Authority or the authority to which theAppointing Authority or any other authority empowered inthis behalf, as the case may be, who made the order of put-off duty shall be competent to vary the amount ofcompensation for any period subsequent to the period offirst 90 days as follows:(i) The amount of compensation as ex gratia payment may beincreased by a suitable amount, not exceeding 50% of suchcompensation admissible during the period of the first 90days, if in the opinion of the said authority the period ofput-off duty has been prolonged, for reasons to be reducedin writing, not directly attributable to the Sevak. (ii) The amount of compensation as ex gratia payment may bereduced by a suitable amount not exceeding 50% of suchcompensation admissible during the first 90 days, if in theopinion of the said authority, the period of put-off dutyhas been prolonged due to reasons to be recorded in writingdirectly attributable to the Sevak.Note 1:- The rate of Dearness Allowance will be based on theincreased or decreased amount of compensation admissibleunder sub-clauses (i) and (ii) above. https://hcservices.ecourts.gov.in/hcservices/ Note 2:- The payment of compensation for the put-off dutyperiod shall not be subject to furnishing of a certificatethat the Sevak is not engaged in any other employment,business, profession or vocation:Provided that a Sevak who has been absconding or remainsabsent unauthorizedly and is subsequently put-off duty shallnot be entitled to any compensation as ex gratia payment:Provided further that in the event of a Sevak beingexonerated, he shall be paid full admissible allowance forthe period of put-off duty. In other cases, such allowancesfor the put-off duty can only be denied to a Sevak afteraffording him an opportunity and by giving cogent reasons."7.As per the above Rule, for the period of suspension during thefirst 90 days, the compensation to be paid is 25%, and thereafter,such compensation can be enhanced upto 50%. In the present case,admittedly, the departmental proceeding had been formally startedonly on the issuance of the charge memo on 30.5.2008. It cannot bestated that the respondent No.1 was to be blamed for the delay ininitiation of the departmental proceeding. In such view of thematter, proviso (ii) to Rule 12(3), in our considered opinion, wouldbe applicable, and therefore, the order of the Tribunal is modified.It is directed that the respondent No.1 would be entitled to receive50% of the pay and other allowances as admissible for the periodafter the expiry of 90 days, till the revocation of the order ofsuspension. It is also made clear that the question ofregularization would be considered after the disposal of thedepartmental proceeding as contemplated under Rule 12(4) and Rule 12(5).8.With the above modification, this writ petition is disposed of.No costs. Consequently, connected MP is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Registrar Central Administrative Tribunal Madras Bench, City Civil Court Buildings, High Court Campus, Chennai 600 104.1 cc To Mr.A.P.Balasubramani CGSC, Advocate, SR.24881 cc To Mr.C.K.M.Appaji, Advocate, SR.2207WP No.24407 of 2008DM(CO)SRA(28/01/2009)