Central Administrative Tribunal - Hyderabad
B E T W E E N vs Sri Ram Gopal Sarma And Others And Hence ... on 18 December, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH AT HYDERABAD O.A. No.141 of 2007 DATE OF ORDER 18/12/2008 B E T W E E N: Smt. G. Deenamma, aged 48 years, W/o. Late Sri G. J. Ratnakumar, Ex-Postal Assistant, Kothapet Sub Post Office, Guntur Division, R/o. H.No. 12-13-27, Kulgar's Hospital Road, Kothapet, Guntur- 522 001. ....Applicant A N D 1. The Director General of Posts, Department of Posts, New Delhi; 2. The Chief Postmaster General, A.P. Circle, Abids, Hyderabad- 500 001; 3. The Post Master General, Vijayawada Postal Region, Vijayawada, Krishna District; 4. The Superintendent of Post Offices, Guntur Postal Division, Guntur- 522 007. ...Respondents. Counsel for the applicant : Mr. Md. Muneer Counsel for the Respondents: Mr. G. Jaya Prakash Babu, Sr. CGSC CORAM: HON'BLE MRS. BHARATI RAY, JUDICIAL MEMBER HON'BLE MR. HRIDAY NARAIN, ADMINISTRATIVE MEMBER ORAL ORDER
( HON'BLE MRS. BHARATI RAY, MEMBER(J).) Heard Mr. Md. Muneer, learned counsel for the applicant and Mr. G. Jaya Prakash Babu, learned Senior Standing Counsel appearing for the respondents.
2. It is the case of the applicant that the deceased husband of the applicant, late G. J. Ratna Kumar entered into Postal Department during the year 1974 and was charge sheeted under Rule 14 of CCS ( CCA) Rules, 1965 by the fifth respondent herein vide Memorandum No. B-136/DC/91 dated 12.4.1991. The charges leveled against the applicant are as follows:-
Article-I That the said Sri G. John Ratna Kumar while functioning as PA Mangalagiri HO from 11.5.87 unauthorizedly absented from duty from 18.5.89 to 20.9.89 and from 10.7.90 to till date contravening the provisions of Rules 62 and 162 of P & T Man. Vol.III.
By his above acts the said Sri G. John Ratna Kumar exhibited lack of devotion to duty thereby contravening the provisions of Rule 3 (ii) of the CCS ( Conduct) Rules, 1964.
Article-II That the said G. John Ratna Kumar while functioning in the aforesaid office during the aforesaid period failed to reside in the Deptl. Quarters allotted to him and unauthorizedly handed over the quarters to unauthorized private persons and thereby failed to maintain integrity contravening the provisions of Rule 3 (1)(i) of the CCS ( Conduct) Rules, 1964.
3. The charged employee denied the charges and enquiry was held by the authority who issued the order of removal vide memo No. B-136/DC/91 dated 15.09.1993. The applicant preferred an appeal to the appellate authority on 4.11.1993. Since the Director of Postal Service, Vijayawada has informed that the appeal was not received in his office, he made a supplementary appeal on 12.09.1998 and the same was rejected as time barred on 12.09.1998. However, the petition of the charged employee dated 16/22/3/2000 was considered by the Member ( D) Postal Services Board, New Delhi and the following order was passed:-
"In view of this, the case deserves to be remitted back to the disciplinary authority for de novo proceedings form the stage of supply of the inquiry report to the petitioner for making representation. The competent disciplinary authority may pass the final orders after taking into consideration representation of the petitioner against the inquiry report, if any and other connected records of the case. The disciplinary authority may take a holistic view taking into account the extenuating circumstances of the case and may consider if a lesser penalty than removal from service should be imposed to meet the ends of justice in this case. The final orders be passed by the competent disciplinary authority within a period of three months of receipt of this order. In exercise of powers conferred vide Rule 29 of CCS ( CCA) Rules, 1965, I hereby order accordingly."
4. Pursuant to the said order, the matter was remitted back to the disciplinary authority and the disciplinary authority passed its order dated 28.3.2003. The relevant portion of the order of the disciplinary authority is extracted below:-
"In view of the above said facts, I, V. RAMULU, Sr. Supdt. RMS, Hyderabad Sorting Division, Hyderabad-27 after considering the family circumstances and on humanitarian grounds, take lenient view and hereby order that the charged official Sri G.J. Ratna Kumar be reinstated as Postal Assistant in Guntur Postal Division with immediate effect and his pay be fixed at the minimum in the scale of Rs. 4000-100-6000/-. He will start earning his subsequent increments from this minimum afresh. Further, it is ordered that the intermediate period from the date of his removal (i.e. 15.09.93) to the date of reinstatement will not count for any purpose except pension."
5. Pursuant to the said order of the reinstatement, the employee was reinstated and soon after reinstatement, he expired on 5.4.2002. It is the contention of the learned counsel for the applicant herein that since the deceased husband of the applicant expired soon after the order was passed by the disciplinary authority, the said order was not challenged. However, the applicant herein has submitted a representation to Sri V. Ramulu i.e. the Senior Superintendent, R.M.S. Hyderabad Sorting Division, Hyderabad on 21.06.2002 requesting for treating the period of absence of the deceased employee from 15.09.1993 to 5.4.2002 as spent on duty for all purposes and the pay and allowances may be allowed. The said representation was followed by another representation to the 2nd Respondent which was considered and disposed of by Respondent No.2 with the following order:-
"(i) The order of penalty of reduction of pay issued by the Adhoc Disciplinary Authority i.e. SSRM, Hyderabad Sorting Division vide his memo No.INV.I/Adhoc/GJRK/2000 dated 28.3.2002 for an unspecified period is modified to the extent that the period of reduction is for one year, other conditions being the same except the treatment of the intervening period from the date of his removal i.e. from 15.09.1993 to the date of reinstatement 05.04.2002. However, the penalty of reduction would be technically in operation from the date of his reinstatement to the date of his death i.e. from 06.4.2002 to 13.5.2002.
(ii) As the regulation of the entire period of absence of Sri G. J. Ratna Kumar from the date of removal to the date of reinstatement i.e. from 15.09.1993 to 5.4.2002 without issuing any show cause notice to the official as per FR-54(4) is not in order, the case is remitted back to the Adhoc Disciplinary Authority i.e. SSRM, Hyderabad Sorting Division to decide the case of regularization of the entire intervening period afresh and issue specific orders in the matter after issuing a show cause notice to Smt. G. Deevamma, wife of the Sri G.Ratna Kumar as a special case and also after taking her representation, if any, into consideration.
I, T.S. Govindarajam, Chief Postmaster General, Andhra Pradesh Circle in exercise of the powers conferred by Rule - 29 of CCS ( CCA) Rules, 1965 and also in accordance with the instructions contained in G.O. Department of Posts, New Delhi Notification No.C-11011/1/2001-VP dated 29.5.2001 hereby order accordingly."
Pursuant to the above order passed by the authority concerned, the applicant herein was served with a notice dated 18.2.2004 intimating her proposal to regularize the period in question as follows:-
i) No pay and allowances shall be paid for the period from 15.09.1993 to 20.3.2001 from the date of removal to the date on which the government servant submitted his representation for reinstatement i.e. 5.4.2002 ( period commencing from the date of representation for reinstatement)
ii) Pay and allowances to be restricted to the subsistence allowance that would have been admissible had he been placed under suspension during the period from 21.3.2001 to the date of his reinstatement i.e. 5.4.2002 (period commencing from the date of representation for reinstatement till the date of reinstatement.)
6. Pursuant to the order dated 18.2.2004, the applicant submitted her representation on 17.4.2004 to Sri Md. Hussain, RMS. The said representation was considered by the authority concerned and it was found that the reinstatement of the Government servant by the SSRM of Hyderabad Stg. Division was an act of expedient rather than act of exercising any power. It is observed that Senior Superintendent of RMS has passed this order in the capacity of adhoc disciplinary authority, but it is for the disciplinary authority (SPO, Guntur) to take action for implementation. The applicant therefore approached this Tribunal earlier by filing O.A. No. 1163 of 2004 wherein this Tribunal has observed that since the matter was referred to D.G. Posts, New Delhi and final order could not be passed because the clarification order was to be received from the D.G. Posts. Considering that, this Tribunal disposed of the O.A. by directing the D.G. Posts to issue clarificatory order and see that the final order is to be passed by the competent disciplinary authority and be communicated to the applicant within a period of two months from the date of communication of the order.
7. Pursuant to the said order of the Tribunal dated 15.4.2005 passed in O.A. NO. 1163 of 2004, the clarificatory orders were issued by the Director General (Posts), New Delhi (RI) vide letter dated 02.08.2005 and, accordingly, the 4th Respondent issued order dated 21.2.2006. Copy of which is enclosed as Annexure-I at page 11 of the O.A. Questioning the said order , the applicant has approached this Tribunal once again by way of filing instant O.A. seeking for the following reliefs:-
"For the facts and grounds stated above, it is prayed that this Hon'ble Tribunal may be pleased to declare that the impugned order No. B-1/240/OA 1163/04 dated 21.2.2006 of the Superintendent of Post Offices, Guntur Division, Guntur ( 4th respondent), as illegal, arbitrary, violative of Article 14, 16 and 21 of the Constitution of India and also against the spirit of Fundamental Rule 54 and also against the decision of Hon'ble Supreme Court rendered in Civil Appeals No. 87-88 of 1986 decided on 17th January, 2002 in Jaipur Zilla Sahakari Vikas Bank Ltd Vs. Sri Ram Gopal Sarma and others and hence to quash the same and to direct the respondents to treat the entire intermediate period from date of removal to the date of reinstatement i.e. from 15.09.1993 to 5.4.2002 as spent on duty with full pay and allowances and also to pass any such other order or orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
8. Md. Muneer, the learned counsel for the applicant submits that since the employee expired soon-after his reinstatement into service as mentioned above, the respondent authorities are not justified in ordering 50% of pay and allowances while regularizing the intervening period from the date of removal to the date of reinstatement i.e. from 15.09.1993 to 05.4.2002 as if he was placed under deemed suspension. Admittedly, he expired soon the order was passed. In this context, he has drawn our attention to sub par -2 of FR 54 -B which reads as under:-
"(2) Notwithstanding anything contained in Rule 53, where a Government Servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid."
9. It is the contention of the learned counsel for the applicant that it is a case of death, therefore the spirit of this provision shall be applied in this case and, therefore, the authority was not justified in allowing 50% allowance instead of full pay and allowances for the said period. In this context, he has also taken us to page -7 of the counter reply filed by the respondents to show that the respondents have admittedly stated that the deceased employee was not issued any show cause notice as per the provisions of FR 54 before regularizing period. That being the position, it is the contention of the learned counsel for the applicant that for the suspension period, he shall be paid full pay and allowances. The learned counsel for the respondents however has drawn our attention to F.R. 54 (4) which reads as under:-
"(4) In cases other than those covered by sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Government servant shall, subject to the provisions of sub rules (5) and (7), be paid such amount ( not being the whole) of the pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement as the case may be, as the competent authority may determine, after giving, notice to the Government Servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period ( which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice."
10. The learned counsel for the respondents submits that this is a case of reinstatement, the deceased employee was removed from service and subsequently reinstated into service by the order of the 4th Respondent i.e. Superintendent of Post Offices. The Rule 54 (4) is therefore applicable in this case and he admits that as per the provision of 54(4) notice was required to be issued to the Government Employee which could not be done as admittedly stated by the respondents at page -7 of the counter reply (Supra).
11. The question that falls for consideration in this case is as to whether the authority is justified in allowing 50% of the pay and allowances for the entire period of deemed suspension when no notice could be given to the government employee as required under F.R. 54 (4),
12. The para -5 of F.R.54 reads as under:-
In a case falling under Sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be treated so for any specified purpose:
Provided that, if the Government servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due to and admissible to the Government servant."
13. We find that in the present case the respondents have treated the case of the applicant herein as a special case although there is no such provision available under Rule 54. However, when Sub rule 5 of F.R. 54 requires that if the Government servant so desires for treating the period as mentioned therein and when admittedly no notice could be issued to the Government employee during his lifetime as required under Rule 54 (4) and the applicant herein has in his relief has inter alia prayed for a direction to treat the entire intermediate period from date of removal to the date of reinstatement i.e. from 15.09.1993 to 5.4.2002 as spent on duty with full pay and allowances, the disciplinary authority, in such case, is required to reconsider this issue once again duly keeping in mind that the authority has failed to issue notice to the government employee as required under Sub rule 4 of FR - 54. It is observed that in the disciplinary proceedings, the initial order was issued by incompetent authority, for which the deceased employee could not be held responsible. So it appears that the respondents were not taking adequate care while dealing with the case for which the deceased employee and his family could not suffer. We are of the view that the disciplinary authority is required to be directed to consider this aspect while treating the intervening period or in other words whether the applicant can be denied full pay and allowances when the applicant herein i.e. the wife of the deceased employee categorically sought for a prayer as mentioned and the deceased employee was not given notice as required under Rule 54 ( Supra). We are of the view that it would be justified on the part of the respondents to redress the grievance of the applicant as required under sub para -5 of F.R. 54 instead of issuing show cause notice as a special case in absence of any provision under the rule.
14. We, therefore, dispose of this application by directing the disciplinary authority to reconsider the request of the applicant in view of the above discussion in regard to the treatment of the period between 15.09.1993 to 05.04.2002 i.e. whether full pay and allowance can be denied considering that the applicant has already sought for such relief in view of the above observation. The disciplinary authority shall pass such appropriate order within a period of two months from the date of receipt of copy of this order and communicate the decision thereon to the applicant within two weeks from the date of passing of such order. Since the applicant is a widow of the deceased employee and it is long standing case, the disciplinary authority is directed to pass the order within the above stipulated time without any delay. The O.A. is disposed of accordingly. However, there shall be no order as to costs.
(HRIDAY NARAIN) (BHARATI RAY) MEMBER(A) MEMBER(J) Dated 18th December, 2008 (Dictated in open court)