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1984 DIGILAW 34 (KER)

Neelakanda Pillai v. Director Of Postal Services

1984-02-03

M.P.MENON

body1984
JUDGMENT M.P. Menon, J. 1. The Petitioner, an employee of the Posts and Telegraphs Department, was suspended from service pending disciplinary action, on 16th October, 1981. A charge sheet was issued on 21st November 1981. An Enquiry Officer and presenting officer were appointed on 8th December 1981. The first sitting of the enquiry was on 15th January, 1982. There is no dispute that the petitioner participated in the proceedings. The case was then posted for evidence to 10th February 1982. The Presenting Officer subsequently made a request for adjournment; it was granted, and the enquiry was adjourned to 16th February 1982. On that occasion, the petitioner applied for adjournment on the ground that he was unwell; and the application was supported by a medical certificate. The enquiry was adjourned; and there is no dispute that the petitioner had not asked for any adjournment at any time subsequent to 16th February 1982. 2. It appears that the Department got suspicious about the medical certificate produced by the petitioner. They called upon him to appear before the District Medical Officer or the Civil Surgeon. He did not comply with these directions. They conducted an enquiry through the Sub Divisional Inspector in whose opinion the petitioner was not unwell, as certified by a qualified physician. The Director General therefore decided that the period of enquiry was being prolonged for reasons directly attributable to the petitioner; and in exercise of his power under F.R. 53, Ext. P-4 order was passed reducing the rate of the petitioner's subsistence allowance by 25 per cent. The challenge in this writ petition is to Ext. P-4. 3. The counter affidavit proceeds on the assumption that on 16th February 1982 the petitioner had asked for an adjournment for two months. On enquiry by the authorities they found that request for such a long adjournment was not justified either by the medical certificate or by the other circumstances disclosed subsequently. The reduction in the rate of subsistence allowance was ordered under the impression that the petitioner was attempting to unduly protract the enquiry. But the whole assumption on which this line of approach is made in the counter affidavit, appears to be wrong. Ext. P-7 is the application which the petitioner had filed for adjourning the enquiry from 16th February 1982. That did not involve a request for adjournment for a period of two months. But the whole assumption on which this line of approach is made in the counter affidavit, appears to be wrong. Ext. P-7 is the application which the petitioner had filed for adjourning the enquiry from 16th February 1982. That did not involve a request for adjournment for a period of two months. The authorities could have adjourned the enquiry for two or three days and then commenced it again. The order Ext. P-1 cannot be sustained, as it proceeds on the incorrect assessment of facts and wrong inferences made therefrom. What had really happened was that the petitioner had asked for one adjournment only and that too on medical grounds. No reasonable person could infer from this circumstance alone that the petitioner was out to protract the enquiry for months together, particularly when it is seen that he was duly participating in the proceedings on every other occasion. 4. Even otherwise, the rule requires that before action is taken thereunder, reasons should be recorded in writing. Ext. P-4 contains no reasons. It is not claimed that reasons have been separately recorded in writing. Another infirmity attached to Ext. P-4 is that in so far as it amounted to partial deprivation of the rate of subsistence allowance the petitioner was eligible to claim, such an order could have been issued only in accordance with the principles of natural justice, i.e., after giving an opportunity to the party likely to be affected to show cause against the proposal. The authorities should have realised that they were dealing with the subsistence of a human being. The provision for payment of subsistence allowance is designed to ensure that however bad and condemnable a person's conduct may be, during the pendency of the enquiry into that conduct at least, he and his family should subsist. And in dealing with subsistence allowance so payable, the appropriate authorities empowered to reduce it cannot act in violation of the rules of natural justice, cannot act on the basis of assumptions, and if I may say so, cannot act lightly. The consequences are very serious for the employee concerned and for that reason alone, the question should have received the most anxious consideration of the appropriate authority. Under the circumstances, I set aside Ext. The consequences are very serious for the employee concerned and for that reason alone, the question should have received the most anxious consideration of the appropriate authority. Under the circumstances, I set aside Ext. P-4 and hold that the petitioner will be eligible to receive subsistence allowance at the usual rate till the completion of the enquiry and the passing of final orders thereon.