Central Administrative Tribunal - Madras
Joseph Irudhdhayaraj vs M/O Communications on 27 October, 2021
4 q OA 1143/2019 1 CENTRAL ADMI NISTRA TTVE TRIBUNAL MADRAS BENCH O.A. /310/1143/2019 Hon'ble Smt. Archana Nigam, Member (A) Hon'ble Mr. Swarup Kumar Mishra, Member (J) S. Joseph Irudhayaraj, GDS (Packer) (under put off duty) Eraiyur SO 607201, Vridddhachalam Postal Dn ..
. ..... Applicant Versus • 1. Union of India represented by The Postmaster General, Central Region, Tiruchirappali 620001.
2. Superintendent of Post Offices, Virddhachalan Division, Vriddhachalam - 606 001.
3. The Inspector Posts, Kallakurichi East Sub Division, Kallakurchi 606 202.1143 ....Respondent.
For the applicant: Mr. P. R. Satyanarayanan, counsel. For the respondents: Mr. R. S. Krishnaswamy, counsel.
Date of hearing: 15.09.2021 Date of Order:27-10 .2 )
• Per: Mr. Swarup Kumar Mishra, Member (J)
The applicant challenging the put off duty order against him has filed the instant OA praying for the following relief:
i. Call for the records relating to the proceedings () IPKACE/GDS/SJ-
Eraiyur/Dlgs dated 07.01.2019 (ii) IPKACEIGDSISJ-ERAIYUR/Dlgs dated 24.04.2019 and (iii) IPKACEIGDSISJ-Eraiyur/Dlgs dated 30.07.2019 issued by the third respondent and confirmed by proceedings No. AP/01/2018-2019 dated 14.05.2019 issued by the second respondent and quash them as arbitrary and illegal and direct the respondents:
0A 1143/2019 2 zz. To revoke the order of put off' duty and reinstate the applicant into duty with immediate effect.
iii. To treat the entire period ofput off duty as dutyfor all purposes and iv. Award cost for arbitrarily keeping the applicant under put of duty for an indefinite period and pass such further or other orders as this Hon 'ble Tribunal may deem fit and proper in the circumstances of the case and thus renderjustice.
v. To direct the respondents to treat the period in question which the period is not decided and disposed, as duty and other consequential benefits. vi. Pass any other suitable order or orders as this Hon 'ble Tribunal may deem fit to meet the ends ofjustice.
• vii.It is prayed that the Tribunal mayfurther be pleased to award exemplary and deterrent cost against the erring respondents to be paid to the CAT Bar Association..
2. The brief fact of the case as inter alia averred by the applicant is that while working as GDS at Erayiur Post Office in March 2017 during special drive to open SB/RD account he had came forward to open 30 RD accounts at Eraiyur SO and 25 one year TD accounts at Ellaigramam BO in his name. ~ had also arranged to open 30 RD account in his wife name and 10 RD accounts in his sister's name. The applicant submitted that Srhi Senthilkumar the then SPM, Eraiyur SO informed him that RN passbooks were not in stok and he would arrange to issue new PBs as and when blank PBs are received from the Head Post Office. The applicant submitted that Shri Senthilkumar was relieved from the post of Sub PostMaster, Eraiyur PO on 26.09.2018 and on 10.12.2018 he came to his house and handed over bundle of passbooks informing that all OA 1143/2019 3 the passbooks are related to the accounts opened by the applicant. It is submitted that since the applicant was busy with his daughter marriage fixed on 14.12.2018 he did not verify the entries made in the PBs and on 03.01.2019 when he opened the bundle he found that 119 blank pass books were there and that only 95 passbooks were due to the applicant while it had 24 pass books in excess. The applicant submitted that in order to get the entries properly in the passbooks he went to Eraiyur SO on 04.01.2019 where he found Inspecot Posts, • Kaljurichi East Sub Division took possession of the passbooks. The applicant submitted that vide memo dated 07.01.2019 issued by 3° respondent the applicant was put off duty with immediate effect and he continues to be in put off duty till now. He further submitted that vide memo dated 24.04.2019, respondent no. 3 has ordered continuance of put off duty without limiting it to any fixed timelimit.
3. The applicant submitted that he had submitted an appeal to 2" respondent • on 14.01.2019 followed by representation dated 26.02.2019 and 07.05.2019 (addressed to Director of Postal services, Central Region) and it was rejected vide letter dated 14.05.2019 issued by 2 respondent on the ground that Shri Senthilkimar had committed serious irregularities and therefore the continuance of put off duty of the applicant is justified. Thereafter on 27.05.2019 the applicant as per direction of ASP attended the "confronting inquiry" wherein Shri Senthilkumar admitted to handing over blank PBs to the applicant. The applicant further submitted that the 3" respondent vide order dated 30.07.2019 OA 1143/2019 4 extended the period of put off duty indefinitely and in spite of the fact that he was put off duty for more than 7 months the applicant was paid only 25% of TRCA.
4. The respondents in their counter inter alia averred that on 04.01.2019 the 3 respondent i.e. Inspector of Posts, Kallakurichi East had gone to Eraiyur SO to investigate the case of complaints received from various GDS alleging non • receipt of passbooks from Eraiyur SO. At that time, the appciant voluntarily reported that he was given 119 blank passbooks by Shri G. Senthilkumar on 10.12.2018 (the time he was not SPM). The investigating officer got suspicious and directed the applicant to give statement in writing of how he got the passbooks and for what reason. The respondents submitted that applicant refused to do so despite the 3 rd respondent being his appointing authority thus failing to carry out the meaningful orders of superior. The act was properly recorded from the witness. Subsequently frauds committed by Shri G. Senthilkumar came to light and since applicant had received blank passbooks • from him and had refused to give statement he was placed under put off duty vide Rule 12 (1) of Department of Posts, Gramin Dak Sevaks (C&E) Rules 2011.
5. It is fmihcr submitted by the respondents that the applicant was placed under put off duty for his act of utmost insubordination of refusal to give statement for a suspected fraud case, of not obeying the order of the immediate superior and that put off duty of applicant was consistently reviewed by the . :v'.
o ,1/1 0A 1143/2019 5 authority who had placed him under off duty. The respondents submitted that l" respondent had appointed Shri S Sundaresan, then Inspector of Ulundurpet Sub Division as Ad-hoc Disciplinary Authority and he had issued charge sheet dated 05.09.2019 under Rule 10 of Department of Posts (C&E) Rules 2011. Therefter after finding that the charge memo was vague without any clarity vide memo dated 30.01.2020 cancelled the charge memo issued dated 05.09.2019 • and the applicant was informed that the cancellation was without prejudice to the issuance of fresh charge memo based on the same facts. The said charge memo dated 31.01.2020 was set aside after the order of this Tribunal dated 14.06.2021 in OA No. 440/2020 filed by the applicant.
6. Learned counsel for the applicant relied on few citations including the following:
a) Hon'ble Supreme Court in Union of India vrs Dipak Mali (2010) 2 SCC 222 .
• b) Hon'ble Supreme Court in Ajay Kumar Choudhary vs Union of India (2015) 7 $CC 291
c) Hon'ble Madras High Court in WA 613 of 2017 (The District Collector vs K. Devendran)
7. Learned counsel for the respondents relied on few citations including the following:
a) Hon'ble Supreme Court in Calcutta Jute Manufacturing Co. Ltd. vs Workers Union 1961-IILLJ 685 0A 1143/2019 6
b) Hon'ble Supreme Court in Workers vs Management, Meccano Flooring (P) Ltd, 1960 I LLJ 674
8. We have heard learned counsel for both sides, carefully gone through the records and citations relied upon by them.
9. The applicant is governed by the Rules, 2011. Rule 12 deals with Put off duty. The Recruiting Authority. or any authority to which the Recruiting Authority is subordinate or any other authority empowered in that behalf bye Government by general or special order may put a Sevak off duty. Sub-Rule (3) of Rule 12 talks about grant of compensation as ex.gratia payment equal to 25% of his/her time related continuity allowance together with admissible dearness allowance. Further Sub-Rule (i) of Rule 3 of Rules 12 provides to empower the authority to increase the ex.gratia payment not exceeding 50% of such compensation admissible during the first 90 days after recording reasons in writing not directly attributable to Sevak. Sub-Rule (ii) also empo°' }"
authority not to increase the ex.gratia payment not exceeding to 50% after the completion of 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. Rule 12, for ready reference, is reproduced hereunder:-
" 12. Put off duty (1) The Recruiting Authority or any authority to which the Recruiting 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:
0A 1143/2019 7
(a) Where a disciplinary proceedings 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 case 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 Recruiting 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 (I) shall • cease to be effective on the expiry of fifteen days from the date of such order unless earlier confirmed or cancelled by the Recruiting Authority or the authority to which the Recruiting 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 payment 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 Recruiting Authority or the authority to which the Recruiting 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 offirst 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 recorded 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 theSevak.
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.
0A 1143/2019 8 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"
10. It is the contention of the applicant that even though he has been put off duty for more than 7 months (at the time of filing the OA) the respondents he not objectively reviewed for payment of ex gratia at higher rate. Respondents counsel on the other hand submitted that the put off duty period of applicant has been reviewed on 24.04.2019 & 30.07.2019 and it was found that continuation of put off duty was necessary and payment of 25% TRCA is justified and no revision either upward or downward is necessary. The wordings in both the review letters are identical and is extracted below:
"In accordance with the provisions contained in rule 12(3) of GOS (conduct & . engagement) rules 2011, a review of the 25% TRCA being paid to Shri S. Joseph lrudayaraj, GDS Packer, Eraiyur SO 607201 who has been under Put off duty since 07.01.2019 (AN) has been carried out. It is considered that continuance of POD of the said GOS is necessary and the present payment of 25% TRCA to the said GOS who is under put off duty is justified and that no revision is, either upward or downward, is necessary"
11. The extracted Rule 12(3) (ii) makes it clear that if the authority empowered to place the Sevak under suspension, comes to the conclusion that his/her suspension has been prolonged due to the reasons directly attributable to the Sevak, then they can allow the Sevak to continue with ex.gratia payment • 4 0A 1143/2019 9 which was allowed to him for the first 90 days without there being any increase subsequently. No such reasons are given in both the review orders. It is also not known why disciplinary proceedings have not been completed till now even though the applicant was placed under put off duty in contemplation of disciplinary proceeding way back in January 2019. No reasons have been attributed to the applicant for the delay in completion of the inquiry causing prolonging of his put off duty period.
• 12. Subsistence allowance or ex-gratia TRCA is not paid as emolument or remuneration. It is paid during the suspension period to meet the employee's minimal needs of sustenance. That is essential to sustain his right to life. That is to say subsistence allowance is not the remuneration of employment, but an amount payable to an employee to make the conditions of service more humane and reasonable in the sense that it will fulfill the requirement of natural justice •as a part of a fair and just enquiry before he is indicted for any misconduct. Put off duty cannot be exercised as penalty or as vindictive action by superior officers to harass an employee. If an employee has been placed under put off duty in contemplation of disciplinary proceedings then it is the responsibility of the employer to complete the proceedings as quickly as it can.
13. On the question of delay in completing the disciplinary proceedings, Hon'ble Apex Court in the case of Prem Nath Bali vs. Registrar High Court of Delhi & Anr. in Civil Appeal No. 958 of 2010 has observed 0A 1143/2019 10 that the employers are to take steps to conclude the disciplinary proceedings within the shortest possible time. I--lon'ble Apex Court in that case has held as under:-
"31) Time and again, this Court has emphasized that it is the duty of the employer to ensure that the departmental inquiry initiated against the delinquent employee is concluded within the shortest possible time by taking priority measures. In cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to ensure that the inquiry is concluded in the shortest possible time to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee. •
32) As a matter of experience, we often notice that after completion of the inquiry, the issue involved therein does not come to an end because if the findings of the inquiry proceedings have gone against the delinquent employee, he invariably pursues the issue in Court to ventilate his grievance, which again consumes time for its final conclusion.
33) Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time • frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year."
14. In view of the above rule positions we find that the order of put off duty of the applicant for such long period of more than two year on contemplation of disciplinary proceeding without even increasing his subsistence allowance is bad in law. We set aside the impugned order dated 07.01.2019 of put off duty of the applicant and direct the respondents to treat the period under put off duty . J 0A 1143/2019 11 as duty and pay the allowances due to the applicant within a period of three months from the date of receipt of copy of this order. However, the respondents are given liberty to proceed in accordance with law for completion of disciplinary proceedings with a direction to complete the disciplinary proceeding within a period of 6 months from the date of receipt of copy of this order.
o° Accordingly the OA is allowed to the extant mentioned at para 14 but in the circumstances without any order to cost.
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