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Judgment
Om Prakash VII, Member (J)
The present O.A. has been filed under Section 19 of the AT Act, with the following reliefs:-
i) Issue an order or direction against the respondent No. 2 (Senior Superintendent of Post Offices, Azamgarh Division, Azamgarh ) to pay the arrears of salary of the applicant w.e.f. 17.2.2005 to 3.11.2005 (suspension period) and from 30.10.2006 to 26.10.2010 (Dismissal period) and all other allowances and consequential benefits with interest of Bank rate.
ii) Issue an order or direction commanding the respondent No. 2 to decide the representation dated 23.4.2012 filed by the applicant before him in accordance with law within stipulated period as fixed by this Hon’ble Court.
iii) Issue any other order or direction which this Hon’ble Court may deem fit and proper with the facts of the case.
iv) Award the cost of the Original Application to the applicant.
The brief facts of the case are that the applicant while working as a Village Post Master, Sonahra (Bardah), Azamgarh was suspended by an order dated 15.2.2005 by the Senior Superintendent of Post Offices, Azamgarh Division, Azamgarh and taken on duty by his order dated 31.10.2005 by revoking the suspension order. A penalty order dated 16.10.2006 has been passed by which the applicant has been dismissed from service. Being aggrieved of the dismissal order dated 16.10.2006, applicant had filed O.A. No. 1377 of 2006, which was disposed of by this Tribunal vide order dated 9.3.2010 directing the applicant to file an appeal before the Appellate Authority and Appellate Authority shall pass a reasoned and speaking order within a period of three months. In compliance of the order dated 9.3.2010, applicant had filed an appeal dated 30.3.2010 and the Appellate Authority allowed the appeal of the applicant vide order dated 15.7.2010 (Annexure No.3 to the O.A.). That in pursuance of order dated 15.7.2010, passed by the Director, Postal Services, Allahabad Region, Allahabad, the Senior Superintendent of Post Offices, Azamgarh has passed an order dated 22.7.2010 (Annexure No. A-4 to the O.A.) by which the applicant was reinstated in service. Thereafter, applicant has joined his duty on the post of Branch Post Master, Sonahara (Bardah), Azamgarh and continuously performing his duties. Applicant prayed for the payment of arrears w.e.f. 17.2.2005 to 3.11.2005 (suspension period) and from 30.10.2006 to 26.10.2010 (dismissal period), but no heed has been paid upon the grievance of the applicant till date. Applicant filed a representation on 23.4.2012, but no action has been taken.
Learned counsel for respondents has filed the Counter Affidavit stating therein that applicant committed fraud by making forged signature of depositor Sri Ram on withdrawal form. In the enquiry, applicant was found guilty of the charges and was placed under put off duty vide order dated 15.2.2005. Applicant was put back on duty vide order dated 31.10.2005. A penalty order dated 16.10.2006 has been passed by which the applicant had been dismissed from service. Appeal filed by the applicant was allowed by the Appellate Authority on 15.7.2010, by which the applicant was reinstated in service. It is stated in the appellate order that salary for the period undergone by the applicant as out of employment will be decided in accordance with departmental rules. It is further stated in the Counter Affidavit that according to the Hon’ble Supreme Court verdict, ‘No work no pay’ will be applicable in the case of applicant.
Heard learned counsel appearing for the applicant and learned counsel appearing for the respondents.
Submission of the learned counsel for the applicant is that applicant was suspended and departmental enquiry was started. Suspension of the applicant was revoked and he was reinstated. Thereafter enquiry was concluded and punishment for dismissal from service was imposed upon the applicant. Departmental appeal was filed in which punishment imposed upon the applicant was modified only to the extent of censure entry. Referring to the Annexure No. 3, it was further argued that appellate authority has ordered to pay salary and other allowances of the period in which applicant was suspended or was not on duty in accordance with rules. Referring to the Rejoinder affidavit, it was further argued that only minor punishment was imposed by appellate authority, therefore, applicant is entitled to the entire benefits as claimed in relief No.1. Thus prayer is made to allow the application.
Learned counsel for the respondents referring to the counter affidavit argued that applicant has not worked during the dismissal period, therefore, he is not entitled for salary and allowances for that period.
I have considered the rival submissions of the parties and have gone through the entire record.
From perusal of record, it is evident that applicant while working as a Village Post Master, Sonahra (Bardah), Azamgarh was suspended by an order dated 15.2.2005 by the Senior Superintendent of Post Offices, Azamgarh Division, Azamgarh and taken on duty by his order dated 31.10.2005 by revoking the suspension order. Dismissal order dated 16.10.2006 has also been cancelled after the order passed by the Appellate Authority and , applicant has joined his duty on the post of Branch Post Master, Sonahara (Bardah), Azamgarh and is continuously performing his duties. Applicant prayed for the payment of arrears w.e.f. 17.2.2005 to 3.11.2005 (suspension period) and from 30.10.2006 to 26.10.2010 (dismissal period), but no heed has been paid upon the grievance of the applicant till date. Applicant filed a representation on 23.4.2012, but no action has been taken. Applicant stated that as per para 54 B(1) of FR, he is entitled for salary for the aforesaid period.
Para 54 B (1) to (9) of F.R. are reproduced below:-
“When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) whole under suspension shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement) as the case may be; and
(b)whether or not the said period shall be treated as a period spent on duty.
(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.
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.
(5) In cases other than those falling under sub-rules (2) and (3) the Government servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, 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.
(6) Where suspension is revoked pending finalization of the disciplinary or the Court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be.
(7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that, if the Government servant so desires such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
Note:- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of –
(a) extraordinary leave in excess of three months in the case of temporary Government servant; and
(b) leave of any kind in excess of five years in the case of permanent or quasi permanent Government servant.
( 8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.
(9) The amount determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.
Period of suspension shall be treated as duty if minor penalty only is imposed. Reference can be taken of O.M. No. 43/56/64-AVD dated 22.10.1964, which contains the guidelines for placing Government servants under suspension and to say that these instructions lay down inter-alia, that Government servant would be placed under suspension, if a prima facie case is made out justifying his prosecution on disciplinary proceedings which are likely to end in his dismissal, removal or compulsory retirement. These instructions thus make it clear that suspension should be resorted to only in those cases where a major penalty is likely to be imposed on conclusion of the proceedings and not a minor penalty. The Staff Side of the Committee of the National Council set up to review the CCA (CCA) Rules, 1965, had suggested that in cases where a Government servant, against whom an enquiry has been held for the imposition of a major penalty, is finally awarded only a minor penalty, the suspension should be considered unjustified and full pay and allowances should be paid for suspension period, Government have considered this suggestion of the Staff Side. Accordingly, where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR 54-B and the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54-B.
In the case of Ashok Kumar Aggrawal Vs. Suniit Bose reported in LAWS (SC) 2014-2-79, Hon’ble Apex Court has held as under:-
“6. We are not able to agree with the submissions made by learned ASG as that the rule has no application to those cases where the suspension order is quashed by judicial or quasi-judicial body. Therefore,, we are of the opinion that the petitioner is entitled for his pay and other allowances w.e.f. 12th January, 2012.”
In the instant case, since suspension order has been revoked by the respondents, applicant has been reinstated, respondents ought to have passed specific order regarding the pay and allowances of suspension period. Similarly, only minor penalty of Censor entry has been awarded upon the applicant in place of dismissal and the applicant has been reinstated and is working on his post continuously. Thus, as per the case laws discussed hereinabove, applicant is entitled for salary and other allowances for the suspension period as well as for the dismissal period along with consequential benefits.
Accordingly, the O.A. is allowed. Respondents are directed to pay full salary and allowances to the applicant for the suspension period i.e. from 17.2.2005 to 3.11.2005 (suspension period) and from 30.10.2006 to 26.10.2010 (Dismissal period) with other allowances and all consequential benefits, within a period of one month from the date of receipt of certified copy of this order.
No order as to costs.