IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20-1-2009 CORAM THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.24407 of 2008 and M.P.No.1 of 2008 1.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. .. Petitioners vs 1.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. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorari to call for the records relating to the impugned order dated 26.2.2008 passed in O.A.No.333 of 2007 of the Central Administrative Tribunal (Madras Bench) and quash the same. For Petitioners : Mr.A.P.Balasubramanian For Respondents : Mr.C.K.M.Appaji for R1 ORDER
(Order of the Court was made by P.K.MISRA, J.)
Heard Mr.A.P.Balasubramanian for the petitioners and Mr.C.K.M.Appaji for the first respondent.
2.The present respondent No.1 was the Gramin Dak Sevak (Mail Deliverer) under the present petitioners. An order of suspension namely “put off duty”, was passed on 22.9.2004. It was indicated in such order that he will get ex gratia compensation equal to 25% of his TRCA together with admissible DA in accordance with Rule 12(3) of the Department of Posts GDS (Conduct and Employment) Rules 2001. Subsequently, even before the initiation of formal disciplinary proceeding by framing a charge, the suspension order was revoked by order dated 31.8.2005. Thereafter, the present respondent No.1 filed O.A.No.333 of 2007 for issuing a direction to the present petitioners to regularize the period of put off duty from 22.9.2004 to 31.8.2005. In such Original Application, the present petitioners took a stand that the departmental proceeding was contemplated, and the matter was under preliminary investigation, and therefore, the question of regularization of the period would be considered only after the departmental proceeding.
3.The Tribunal by taking into consideration the fact that no departmental proceeding had formally been initiated, inasmuch as the formal charge had not been framed and there was no fault on the part of the applicant (present respondent No.1) regarding the initiation of the departmental proceeding, directed that for the entire period, the concerned person should be given the full payment. Such order is questioned in the present writ petition at the instance of the department.
4.Learned Counsel for the petitioners submitted that as per Rule 12(3) of the Department of Posts GDS (Conduct and Employment) Rules 2001, during the period of suspension, the concerned employee will be paid compensation of 25% for the first 90 days, and thereafter, such amount can be increased upto 50% at the discretion of the concerned authorities, and therefore, there was no justification for the Tribunal to pass an order regarding payment of the entire amount. It is also brought to our notice that subsequently, a charge memo has been issued on 30.5.2008.
5.Learned Counsel for the first respondent on the other hand submitted that at the time when suspension order was passed, the departmental proceeding had not been actually initiated, and charge memo had not been issued, and therefore, the Tribunal was justified in passing the order.
6.Having heard the Counsel for both the parties, we feel that the order of the Tribunal is required to be modified in order to make it consistent with Rule 12 which is quoted hereunder.
“12.Put-off duty
(1) The Appointing Authority or any authority to which the Appointing Authority is subordinate or any other authority empowered in that behalf by the Government, by general or special order, may put a Sevak off duty:
(a) Where a disciplinary proceeding against him is contemplated or is pending; or
(b) Where a case against him in respect of any criminal offence is under investigation, enquiry or trial:
Provided that in cases involving fraud or embezzlement, the Sevak holding any post specified in the Schedule to these rules may be put-off duty by the Inspector of Post Offices or the Assistant Superintendent of Post Offices of the Sub-Division, as the case may be, under immediate intimation to the Appointing Authority.
(2) An order made by the Inspector of Post Offices or the Assistant Superintendent of Post Offices as the case may be, of the Sub-Division under sub-rule (1) shall cease to be effective on the expiry of fifteen days from the date of such order unless earlier confirmed or cancelled by the Appointing Authority or the authority to which the Appointing Authority is subordinate.
(3) A Sevak shall be entitled per month for the period of put-off duty to an amount of compensation as ex gratia equal to 25% of his/her Time Related Continuity Allowance together with admissible Dearness Allowance:
Provided that where the period of put-off duty exceeds 90 days, the Appointing Authority or the authority to which the Appointing Authority or any other authority empowered in this behalf, as the case may be, who made the order of put-off duty shall be competent to vary the amount of compensation for any period subsequent to the period of first 90 days as follows:
(i) The amount of compensation as ex gratia payment may be increased by a suitable amount, not exceeding 50% of such compensation admissible during the period of the first 90 days, if in the opinion of the said authority the period of put-off duty has been prolonged, for reasons to be reduced in writing, not directly attributable to the Sevak.
(ii) The amount of compensation as ex gratia payment may be reduced by a suitable amount not exceeding 50% of such compensation admissible during the first 90 days, if in the opinion of the said authority, the period of put-off duty has been prolonged due to reasons to be recorded in writing directly attributable to the Sevak.
Note 1:- The rate of Dearness Allowance will be based on the increased or decreased amount of compensation admissible under sub-clauses (i) and (ii) above.
Note 2:- The payment of compensation for the put-off duty period shall not be subject to furnishing of a certificate that the Sevak is not engaged in any other employment, business, profession or vocation:
Provided that a Sevak who has been absconding or remains absent unauthorizedly and is subsequently put-off duty shall not be entitled to any compensation as ex gratia payment:
Provided further that in the event of a Sevak being exonerated, he shall be paid full admissible allowance for the period of put-off duty. In other cases, such allowances for the put-off duty can only be denied to a Sevak after affording him an opportunity and by giving cogent reasons.”
7.As per the above Rule, for the period of suspension during the first 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 started only on the issuance of the charge memo on 30.5.2008. It cannot be stated that the respondent No.1 was to be blamed for the delay in initiation of the departmental proceeding. In such view of the matter, proviso (ii) to Rule 12(3), in our considered opinion, would be applicable, and therefore, the order of the Tribunal is modified. It is directed that the respondent No.1 would be entitled to receive 50% of the pay and other allowances as admissible for the period after the expiry of 90 days, till the revocation of the order of suspension. It is also made clear that the question of regularization would be considered after the disposal of the departmental 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.
nsv/
To:
1.The Registrar
Central Administrative Tribunal
Madras Bench, City Civil Court
Buildings,
High Court Campus,
Chennai 600 104