Allahabad High Court
Union Of India And 2 Others vs Amit Kumar Mishra on 28 February, 2023
Bench: Suneet Kumar, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- WRIT - A No. - 2805 of 2023 Petitioner :- Union Of India And 2 Others Respondent :- Amit Kumar Mishra Counsel for Petitioner :- Pranay Krishna Counsel for Respondent :- Mohan Upadhyay,Babu Nandan Singh Hon'ble Suneet Kumar,J.
Hon'ble Rajendra Kumar-IV,J.
(Per : Suneet Kumar,J, Oral)
1. Heard learned counsel for the respective parties.
2. The present writ petition has been filed by the Union of India / Senior Superintendent of Post Offices, Varanasi, assailing the order dated 01 August, 2022, whereby, the suspension / put off duty of the respondent-original applicant, has been set aside. Aggrieved petitioners filed a review petition, which came to be dismissed by order dated 21 September, 2022.
3. The learned counsel appearing for the petitioners has raised a short question that the Tribunal instead of directly setting aside the order of suspension / put off duty, should have remanded the matter to the authority to review the put off duty as the allegations against the respondent-original applicant was serious pertaining fraud and embezzlement of money of the depositors. In other words, it was not open to the Tribunal to have substituted itself for the competent authority.
4. It is not in dispute, inter se, parties that the provisions of the Department of Posts, Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011, is applicable. In exercise of powers conferred under Rule 12, the respondent / original applicant came to be suspended / put off duty, by the appointing authority vide order dated 7 December, 2020.
5. The respondent / original applicant raised challenge to the order, inter alia, on the ground that the respondent / original applicant could not have continued under suspension / put off duty, as the order was not reviewed as per rule / directions issued by the Director General and in support of his submission, reliance was placed on the decision rendered by the Hon'ble Supreme Court in Ajay Kumar Choudhary vs. Union of India through Secretary reported in 2015 (7) SCC 291.
6. The reasoning assigned by the learned Tribunal, allowing the original application of the respondent reads thus :-
"6. It is not disputed that the applicant was placed under suspension on 03.01.2020. There is nothing on record to establish that his suspension was reviewed from time to time as prescribed under the rules. It is not understood as to what purpose will be served by keeping the applicant under further suspension. It is also a fact that almost 18 months have elapsed since the applicant had been placed under suspension without conducting a review as prescribed under the rules. Moreover, the said suspension order is in contravention of the judgement of the Hon'ble Apex Court in Ajay Kumar Chaudhary's case (supra).
9. For the forgoing reasons, the OA is allowed and the impugned orders dated 03.01.2020 and 07.12.2020 are hereby quashed. The respondents are directed to reinstate the applicant in service within a period of two weeks from the date a copy of this order is produced before them by the applicant. The applicant shall be entitled for the arrears of TRCA as per rules."
7. The original applicant came to be suspended / placed under put off duty, on allegations of fraud and embezzlement of the deposits made by the depositors. It is further alleged that the respondent manipulated the mobile numbers of the account holders and substituting it with his own mobile number and that of his relatives. On complaints received from the depositors, respondent / original applicant came to be placed under suspension / put off duty pending inquiry.
8. Rule 12 provides for put off duty which reads thus :-
"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;
(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 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 Recruiting Authority."
9. In other words, the employee can be placed under put off duty by the Recruiting Authority, that the disciplinary proceedings against the employee is contemplated or pending.
10. The proviso to the rule mandates that in the case of fraud or embezzlement, the employee holding any post specified in the Schedule to the Rules may be put off duty by the Inspector of Post Offices or the Assistant Superintendent of Post Offices from the Sub-Division, as the case may be, under immediate intimation to the Recruiting Authority.
11. Sub-Clause (2) of the Rule mandates that the order passed by the Officers noted herein above being subordinate to the Recruiting Authority shall cease to be effective on the expiry of the fifteen days unless earlier confirmed or cancelled by the Recruiting Authority.
12. Reliance has been placed by the respective counsels for the parties on the Director General instructions, the guidelines governing putting off duty, which mandates that putting an Extra Departmental Agent off duty may cause a lasting damage to his reputation, if he is ultimately exonerated. The competent authority is, therefore, expected to exercise his discretion with proper care and due caution while ordering an Extra Departmental Agent to be put off duty, generally speaking, put off duty cases fall under two categories, namely, cases relating to frauds or cases relating to minor incidents of indiscipline.
13. The guidelines further mandates that having regard to the allegations of fraud that may take some time, in the pending disciplinary proceedings, as against the cases of the second category involving administrative lapses should not remain pending for long. The relevant portion of the guidelines for the purposes of case is extracted :-
"2. Putting an Extra-Departmental Agent off duty may cause a lasting damage to his reputation if he is ultimately exonerated. The competent authority is, therefore, expected to exercise his discretion with proper care and due caution while ordering an Extra-Departmental Agent to be put off duty. Generally speaking, put off duty cases fall under two categories, vis., -
(i) cases relating to frauds; and
(ii) cases relating to unauthorized absence, leave without sanctioned complaints from the public, etc. While the inquiry into the first type of cases may take some time, there is no reason why the type of cases in the second category involving administrative lapses should remain pending for long. The following guidelines by way of precaution may, therefore, be strictly followed by the competent authority before putting an Extra-Departmental Agent off duty :-
(a) ......................
(b) the offence should be of such a srious nature that removal from service would be probable ultimate punishment and it would therefore be inadvisable that the offender should be allowed to continue to perform his duties pending finalization of the disciplinary case against him.
(c) ..............
(d) ..............
(e) .............
3. It is also necessary that the disciplinary authority makes every efforts to finalize the disciplinary proceedings and pass final orders so that an EDA does not remain on put off duty for a period exceeding 45 days and not 120 days as ordered previously. The Divisional Superintendent should draw up a time table for ensuring finalization of disciplinary cases within this period. If, due to unavoidable reasons, it is not possible to finalize a case within this period, the matter should be reported immediately to the next superior authority giving full justification why the EDA cannot be taken back to duty pending finalization of the case. The superior authority should on receipt of the repot immediately review the case and consider -
(i) whether there is justification to continue the EDA concerned off duty for a further period; and
(ii) what steps should be taken by the disciplinary authority to eliminate all avoidable delay in finalizing the case.
The superior authority will then make an order accordingly.
14. Having regard to the guidelines, it is categorically provided that the disciplinary authority should in the event that inquiry cannot be concluded within 120 days should report immediately to the next Superior Authority giving full justification why the employee cannot be taken back on duty pending finalization of the case. The Superior Authority should on receipt of the report immediately review the case and consider, inter alia, whether there is justification to continue the employee on put off duty for further period.
15. In view thereof, it is evident that the review of put off duty of an employee in the first instance has to be considered by the Superior Authority, after lapse of the stipulated time upon a report. The revocation of suspension / put off duty of an employee is not automatic after lapse of a stipulated time.
16. On specific query, learned counsel for the respondent is unable to show from either the Rules or the guidelines that after expiry of 120 days there is automatic cessation of put off duty. Rather, the guidelines mandate review of the order on merit by a Superior Authority.
17. In the circumstances, in our opinion, the learned Tribunal committed an error in usurping upon itself the power of a Superior Authority, thereby, setting aside the impugned orders placing the respondent on put off duty. The reasonable course open to the Tribunal was that it should have remitted the matter to the concerned Superior Authority to take a decision having regard to the charge against the respondent / original applicant pertaining to fraud and embezzlement of deposits of the depositors.
18. Learned Tribunal also committed an error in mechanically applying the ratio of the judgement rendered in Ajay Kumar Chaudhary (supra). On perusal of the authority, it transpires that the employee therein was placed under suspension and the suspension continued for a prolonged period for several years due to pendency of C.B.I. Inquiry. The facts arising therein are altogether in a different context and are not applicable to the facts of the present case.
19. For the reason stated herein, we are unable to persuade ourselves to accept the opinion rendered by the learned Tribunal. Accordingly, the writ petition succeeds and is allowed. The impugned order dated 01 August, 2022 is set aside and quashed.
20. The matter is remitted to the competent Superior Authority to review the put off duty / suspension of the respondent / original applicant in the light of the guidelines. It is expected that an appropriate order shall be passed expeditiously preferably within six weeks from the date of filing certified copy of this order, provided there is no other impediment.
21. It is clarified that we have not expressed any opinion on the rival contentions and merit of the pending disciplinary proceedings against the original applicant.
Order Date :- 28.2.2023 Manoj