Central Administrative Tribunal - Bangalore
Amitha S vs D/O Post on 23 November, 2021
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OA.No.170/556/2020/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE
ORIGINAL APPLICATION NO.170/00556/2020
ORDER RESERVED ON 16.09.2021
DATE OF ORDER: 23.11.2021
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh
Bench, Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore Bench,
Bangalore)
Smt. Amitha S,
W/o Sri Lakshmana Naik,
Aged 44 years,
Postal Assistant, HPO, Madikeri,
(Under Suspension),
Residing at #2/23, Mahadev Pet,
Madikeri 571 201. ....Applicant
(By Advocate Shri A.R. Holla - through video conference)
Vs.
1. Union of India,
By Secretary,
Department of Posts,
Dak Bhavan, New Delhi 110 001.
2. The Director of Postal Services,
Office of the Postmaster General,
South Karnataka Region, Bengaluru 560 001.
3. The Superintendent of Post Offices,
Kodagu Division, Madikeri 571 201. .....Respondents
(By Shri M.V. Rao, Senior Panel Counsel - through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief: 2
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a) To quash the Memo No. F7-01/2020-21 dated 27.05.2020 issued by Respondent No. 3, (Annexure-A7) vide which, the applicant has been placed under suspension with immediate effect.
b) Quash Memo No. SK/STA/9-3/15/2020/I dated 21.07.2020 issued by Respondent No. 2, (Annexure-A10), vide which, the appeal preferred by the applicant dated 05.06.2020 against her suspension has been rejected.
c) Direct the respondents to reinstate the applicant forthwith extending her all the consequential benefits treating the period of her suspension as on duty.
2. The facts of the case as pleaded by the applicant are as follows:
a) The applicant had applied for the post of Postal Assistant in Kodagu Division in 1998 under ST quota. She submitted a certificate to the effect that she belonged to Marati (ST) (Dakshina Kannada). The Tehsildar, Madikeri Taluk, issued a certificate dated 14.08.1997 stating that she belonged to the ST category. She secured the job of Postal Assistant in Kodagu Division in terms of the Memo dated 31.12.1998 issued by Respondent No. 3.
b) Respondent No. 3 sent the certificate submitted by the applicant to the District Magistrate, Madikeri for verification vide letter dated 25.01.1999 and the District Magistrate, Madikeri, who is also the President, Caste Verification Committee, Kodagu vide letter dated 03.06.1999 held that the caste certificate submitted by the applicant is invalid. The Divisional Commissioner and Appellate Authority in his letter dated 27.03.2000 also opined that the applicant does not belong to ST category. 3
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c) The aforesaid orders of the District Magistrate, Madikeri and the Appellate Authority, Caste Verification Committee, were challenged by the applicant before the High Court of Karnataka in Writ Petition No. 13245/2000. The High Court of Karnataka allowed the Writ Petition No. 13245/2000 by an order dated 21.03.2003 remitting the matter to the Caste Verification Committee, Madikeri, to reconsider the matter afresh after affording an opportunity of hearing to the applicant.
d) Subsequently, the Member Secretary and Deputy Director, Social Welfare Department, Caste Verification Committee, Madikeri in furtherance of the decision taken by the Caste Verification Committee dated 26.08.2019, directed the Tehsildar, Madikeri Taluk to cancel the caste certificate produced by the applicant vide letter dated 28.08.2019. In pursuance of the above letter, Tehsildar, Madikeri cancelled the caste certificate dated 14.08.1997 submitted by the applicant vide order dated 01.01.2020.
e) The applicant challenged the said order before the Appellate Authority for Caste Verification Committee, Mysuru. The Appellate Authority confirmed the order of the Caste Verification Committee in terms of the order dated 06.02.2020. The applicant again approached the High Court of Karnataka in Writ Petition No. 4292/2020 seeking stay of the orders of the Caste Verification Committee and the Appellate Authority. The High Court declined to grant the interim prayer vide its order dated 03.03.2020. The applicant preferred an appeal against the said order 4 OA.No.170/556/2020/CAT/Bangalore Bench before the Division Bench of the High Court in Writ Appeal No. 253/2020. The High Court vide its order dated 19.03.2020 held that notwithstanding the pendency of the Writ Petition before the learned Single Judge and pendency of the Writ Appeal, the Appellate Authority is free to proceed with the hearing of the appeal. By way of interim relief, the Court directed Respondent No. 3 not to terminate the employment of the applicant only on the basis of the order of the District Caste Verification Committee dated 26.06.2019 and order of the Appellate Authority dated 06.02.2020.
f) The Respondent No. 3 initiated disciplinary proceedings against the applicant issuing a memo dated 22.05.2020 under Rule 14 of the CCS (CCA) Rules, 1965. The charge against the applicant is that she has obtained the job by producing a certificate issued by the Tehsildar, Madikeri Taluk on 14.08.1997 that she belonged to ST category which has now been cancelled by the Tehsildar, Madikeri Taluk on 01.01.2020. Accordingly, it is alleged that the applicant had applied and secured the job under ST quota by submitting invalid caste certificate and thereby acted in a manner unbecoming of a government servant.
g) Thereafter, Respondent No. 3 placed the applicant under suspension pending disciplinary proceedings vide order dated 27.05.2020. The applicant preferred an appeal against her suspension to Respondent No. 2 on 05.06.2020. However, Respondent No. 2, by an order dated 21.07.2020 rejected the appeal of the applicant and further stated that her suspension would continue till the next review done by the Suspension 5 OA.No.170/556/2020/CAT/Bangalore Bench Review Committee. The suspension of the applicant has been reviewed in terms of the order dated 21.08.2020 and continued for a further period of 90 days i.e., till 25.08.2020. Subsequently, the suspension of the applicant has been reviewed in terms of the order dated 20.11.2020 for a further period of 90 days i.e., from 23.11.2020.
h) The applicant states that she has not acted in a manner unbecoming of government servant by producing the certificate that she belonged to ST in 1997. The certificate is issued by the Tehsildar, Madikeri Taluk, who is liable for issuing the false certificate, if any. The applicant belongs to Naik (Marati) community, which has been categorized as ST in Dakshina Kannada District. The grandfather of the applicant Sri P. Babu alias Puttur Narayana Naik Babu was a resident of Dakshina Kannada where his caste has been classified as ST category. He migrated to Kodagu district where the applicant's father Sri Sheshappa B and thereafter the applicant was born. However, the Naik community in Kodagu district has not been classified as ST. The applicant is of the view that she belongs to ST, being a Naik (Marati) from Dakshina Kannada district.
i) The issue with regard to her caste status is pending before the Appellate Authority, Caste Verification Committee, Mysuru. At this juncture, there is no justification to place the applicant under suspension and hold an inquiry into a non-existent charge against her. The Disciplinary Authority has no jurisdiction and is totally incompetent to decide the caste status of the applicant. The issue with regard to the caste status of the applicant is 6 OA.No.170/556/2020/CAT/Bangalore Bench within the exclusive domain of the Caste Verification Authorities concerned.
3. Learned counsel for the respondents in their reply have pleaded as follows:
a) The applicant was appointed as Postal Assistant in the year 1998 in Kodagu division under ST category by submitting Marati (ST) (Dakshina Kannada) caste certificate issued by the Tehsildar, Madikeri Taluk dated 14.08.1997 vide Superintendent of Post Offices, Kodagu division memo dated 31.12.1998. During the course of verification of the said caste certificate, it was declared by the District Magistrate, Caste Verification Committee, Madikeri, Kodagu district on 04.06.1999 that the caste certificate produced by the applicant is invalid. Accordingly, the said caste certificate was cancelled by Tehsildar, Madikeri Taluk, Kodagu district on 01.01.2020.
b) On cancellation of the caste certificate issued to the applicant by the competent authority, the applicant has been proceeded under Rule 14 of CCS (CCA) Rules, 1965 vide Respondent No. 3 memo dated 22.05.2020 with the following article of charge:
"Article-I Smt. Amitha S, Postal Assistant, Madikeri HO applied and secured the job of Postal Assistant in Kodagu division of Department of Posts during the year 1999 by submitting Marati (ST) (Dakshina Kannada) caste certificate issued by the Tahsildar, Madikeri Taluk, Kodagu district on 14.08.1997. On verification, the said caste certificate was confirmed as invalid by the District Magistrate, Caste Verification Committee, Madikeri, Kodagu district on 04.06.1999. The said caste certificate was cancelled by the Tahsildar, Madikeri Taluk, Kodagu district on 01.01.2020. 7
OA.No.170/556/2020/CAT/Bangalore Bench It is therefore alleged that Smt. Amitha S, Postal Assistant, Madikeri HO by applying and securing the job of Postal Assistant in Kodagu division under ST quota by submitting invalid caste certificate has acted in a manner unbecoming of a government servant violating the provisions of Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964."
c) The applicant was placed under suspension vide Respondent No. 3 memo No. F7-01/2020-21 dated 27.05.2020 with effect from 27.05.2020 afternoon. The Rule 14 inquiry against the applicant is under progress and last sitting in the case was held on 12.01.2021.
d) The applicant preferred an appeal on 05.06.2020 to the Appellate Authority against the order of suspension issued by Disciplinary Authority. Suspension was confirmed and appeal was rejected by the Appellate Authority vide Respondent No. 2 Memo No. SK/STA/9- 3/15/2020/I dated 21.07.2020. Subsequently, a representation was submitted by the applicant to the CPMG, Karnataka Circle, Bengaluru on 11.08.2020 against the appellate orders issued by the Director of Postal Services, S.K. Region, Bengaluru vide Memo No. SK/STA/9-3/15/2020/I dated 21.07.2020 confirming the suspension. The said representation is pending for disposal by the CPMG, Karnataka Circle.
e) Keeping in view the orders of the Hon'ble High Court of Karnataka in Writ Appeal No. 253/2020 wherein the High Court has directed the 5th Respondent i.e., The Superintendent of Post Offices, Kodagu division shall not terminate the employment of the appellant only on the basis of the order of the District Caste Verification Committee dated 26.06.2019 8 OA.No.170/556/2020/CAT/Bangalore Bench and the order of the Appellate Authority dated 06.02.2020. The respondent department did not terminate the applicant from service on the basis of order of the District Caste Verification Committee dated 26.06.2019 and the order of the Appellate Authority dated 06.02.2020 and, as such, order of the High Court was complied with. However, her suspension was continued as the applicant secured job by producing an invalid ST caste certificate which was cancelled by Tehsildar, Madikeri Taluk and inquiry under Rule 14 is under progress against the applicant. There is no direction from the Hon'ble High Court in the interim order to revoke the suspension.
4. Heard learned counsels for both the parties.
5. The prayer of the applicant in this case is concerning her suspension ordered by the respondents on 27.05.2020, which has been extended from time to time by the review committee. The primary grounds for her suspension from duty are that disciplinary action has been initiated against her under Rule 14 of CCS (CCA) Rules. The suspension has been ordered in exercise of powers conferred by the sub rule (1) of Rule 10 of the CCS (CCA) Rules.
6. The Department of Personnel and Training (DoP&T), Govt. of India had issued consolidated instructions on suspension vide their OM No.11012/17/2013-Estt (A) dated 02.01.2014. As per these guidelines, the following general instructions/guidelines have been reiterated:
"3. Suspension, though not a penalty, is to be resorted to sparingly. Whenever a Govt. servant is placed under suspension not only does the Govt. lose his services but also pays him/her for doing no work. It also 9 OA.No.170/556/2020/CAT/Bangalore Bench has a stigma attached to it. Therefore, the decision to place a Govt. servant under suspension must be a carefully considered decision and each case would need to be considered on merits.
4. A Disciplinary Authority may consider it appropriate to place a Government servant under suspension in the following circumstances. These are only intended for guidance and should not be taken as Mandatory: -
(i) Cases where continuance in office of the Government servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering with witnesses or documents);
(ii) where the continuance in office of the Government servant is likely to seriously subvert discipline in the office in which the public servant is working;
(iii) where the continuance in office of the Government servant will be against the wider public interest [other than those covered by
(i) and (ii)] such as there is public scandal and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;
(iv) where allegations have been made against the Government servant and preliminary inquiry has revealed that a prima facie case is made out which would justify his prosecution or is being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service. NOTE:
a) In the first three circumstances the disciplinary authority may exercise his discretion to place a Government servant under suspension even when the case is under investigation and before a prima facie case has been established.
b) Suspension may be desirable in the circumstances indicated below:
(i) any offence or conduct involving moral turpitude;
(ii) corruption, embezzlement or misappropriation of Government Money, possession of disproportionate assets, misuse of official powers for personal gain;
(iii) serious negligence and dereliction of duty resulting in considerable loss to Government;
(iv) desertion of duty;10
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(v) refusal or deliberate failure to carry out written orders of superior officers. In respect of the types of misdemeanor specified in sub clauses (iii) and (v) discretion has to be exercised with care."
7. In the present case, the sole allegation against the applicant as per the charge sheet served on her is that she, by applying and securing the job of Postal Assistant in Kodagu division under ST quota by submitting invalid caste certificate, has acted in a manner unbecoming of a government servant violating the provisions of Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964. The ST certificate was produced by her at the time of appointment in 1998 issued by Tehsildar, Madikeri Taluk, Kodagu district. Now on 01.01.2020, after about 22 years, the same certificate has been cancelled by the Tehsildar. However, the case has not yet reached a final conclusion, since her appeal is still pending consideration before the Appellate Authority as per the orders of the Division Bench of the High Court of Karnataka in Writ Appeal No. 253/2020. The High Court in its order dated 19.03.2020 has held that the Appellate Authority is free to proceed with the hearing of the appeal. The Court also directed Respondent No. 3 not to terminate the employment of the applicant only on the basis of the order of the District Caste Verification Committee dated 26.06.2019 and order of the Appellate Authority dated 06.02.2020.
8. A perusal of the suspension order issued by Respondent No. 3 dated 27.05.2020 indicates that the sole reason for placing the applicant under suspension is that disciplinary action under Rule 14 against the applicant have been initiated.
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9. The guidelines issued by DoPT vide their OM dated 02.01.2014 clearly reiterate that suspension, though not a penalty, is to be resorted to sparingly. Whenever a government servant is placed under suspension not only does the government lose his/her services but also pays him/her for doing no work. It also has a stigma attached to it. Therefore the decision to place a government servant under suspension must be a carefully considered decision and each case would need to be considered on merits.
10. The DoPT in its OM dated 02.01.2014, has also listed various circumstances under which the Disciplinary Authority may consider it appropriate to place a government servant under suspension. A perusal of these circumstances as listed in the OM dated 02.01.2014, clearly indicates that none of the circumstances are applicable in this case. Continuance in the office of the applicant will not prejudice the investigation, trial or any inquiry. It is also not likely to seriously subvert discipline in the office and her continuance in the office cannot be considered to be against wider public interest.
11. There is no doubt that the allegations made against the applicant are such, that if proved to be true, then the proceedings are likely to end in her dismissal from service. However, the fact, whether the Scheduled Tribe certificate furnished by the applicant in 1998 is valid or not, is still a matter of consideration before the Appellate Authority (Director, Directorate of Development of Scheduled Tribes, State Government of Karnataka), wherein the appeal of the applicant is still pending. 12
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12. The Hon'ble High Court has, vide orders dated 19.03.2020 in Writ Appeal No. 253/2020, issued directions that the respondents shall not terminate the employment of the appellant only on the basis of the orders of the District Caste Verification Committee dated 26.06.2019 and the order of the Appellate Authority dated 06.02.2020. It has also been clarified by the Hon'ble High Court that the Appellate Authority is free to proceed with the hearing of the appeal, notwithstanding the pendency of the Writ Petition before the learned Single Judge and pendency of the Writ Appeal before the Hon'ble High Court.
13. The applicant had filed an appeal on 05.06.2020 before the Director Postal Services, South Karnataka Region, Bangalore (Respondent No. 2) against the order of suspension issued by Superintendent of Post Offices, Kodagu Division, (Respondent No. 3). This appeal was rejected by Respondent No. 2, vide orders dated 21.07.2020, on the grounds that the Hon'ble High Court has not given any orders about the revocation of suspension of the official and hence the official would continue to be on suspension till the next review is carried out by the Suspension Review Committee.
14. However, a careful perusal of the records indicate, that the applicant had been suspended vide orders dated 27.05.2020, whereas the orders of the Hon'ble High Court of Karnataka, referred to by the Respondent No. 2, are dated 19.03.2020. Hence, the contention of the respondent that the Hon'ble High Court had not given any orders about revocation of suspension of the 13 OA.No.170/556/2020/CAT/Bangalore Bench official is without any basis, since the suspension order was issued around two months after the orders of the Hon'ble High Court, referred to by the respondent.
15. Keeping all of the above points in view, the orders issued by Respondent No. 3 placing the applicant under suspension, are without any cogent reason and can be termed as arbitrary, being not in consonance with the guidelines issued by DoPT on the subject. The respondents are, of course, free to take suitable disciplinary action against the applicant, once the status of her ST certificate is finally determined by the Appellate Authority. However, there appears to be no plausible reason to place the applicant under suspension subsequent to initiation of disciplinary proceedings against her.
16. The OA is accordingly allowed and the Memo No. F7-01/2020-21 dated 27.05.2020 issued by Respondent No. 3 vide which the applicant has been placed under suspension is quashed. The respondents are further directed to reinstate the applicant forthwith extending to her all the consequential benefits, treating the period of her suspension as on duty.
17. There shall be no order so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (ADMN) MEMBER (JUDL)
/ksk/