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2023 DIGILAW 748 (KAR)

Union of India v. Gajanan N Bhat

2023-06-02

S.G.PANDIT, VIJAYKUMAR A.PATIL

body2023
JUDGMENT VIJAYKUMAR A.PATIL, J. - This petition is filed by the Union of India assailing the order dtd. 16/8/2022 passed by the Central Administrative Tribunal, Bengaluru (hereinafter referred to as, 'the Tribunal', for short) in O.A.No.170/650/2019 wherein the Tribunal has allowed the petition of the respondent by quashing the memo dtd. 8/6/2018 issued by the respondent No.3 therein and directed the petitioners to make payment of full pay and allowances as admissible to the respondent during the period off duty from 9/3/2013 to 4/9/2018. 2. Brief facts giving raise to filing of the present petition are that the respondent No.1 was appointed as GDP in Karwar division. It is alleged that, the respondent has committed misappropriation during the period from 30/8/2002 to 30/12/2009, hence he was placed on "put off duty" on 9/3/2013. The disciplinary actions were initiated against the respondent and on completion of enquiry, the enquiry officer submitted enquiry report on 27/6/2017. The respondent was provided with an opportunity to submit a representation on the report and the petitioner No.3 passed an order dtd. 1/5/2018 imposing a penalty of censure. Further, the petitioners issued a memo dtd. 8/6/2018 clarifying the put off duty period (suspension period) and ordered "the period of put off duty from 9/3/2013 to 30/4/2018 was treated as GDS BPM which means the GDS has already been paid subsistence allowance and no further pay allowance shall be made". The respondent assailed the memo dtd. 8/6/2018 before the Central Administrative Tribunal, Bengaluru in O.A.No.170/650/2019. The Tribunal has allowed the application. In the above factual matrix, the present petition is filed assailing the order of the Tribunal. 3. Learned counsel Sri Mrutyunjay S. Hallikeri for petitioners submits that the Tribunal has committed an error in allowing the application and it has failed to consider the specific contention of the petitioners that the respondent was placed under 'put off duty' from 9/3/2013 to 30/4/2018 under Rule 12(3) of GDS (C and E) Rules, 2011 which clearly stipulates that a Sevak shall be entitled 25% of his salary as ex-gratia payment and if he is exonerated from duty, he shall be entitled for full salary with admissible allowances. The Tribunal has failed to take note of the initiation of the proceedings against the respondent. The Tribunal has failed to take note of the initiation of the proceedings against the respondent. The petitioners have awarded penalty of censure and he was not fully exonerated, hence, the respondent is not entitled to the compensation more than 25% which already he has received. The Tribunal has committed error in not appreciating the material on record in its proper prospective resulting in issuing direction to the petitioners to pay the allowances during the put off duty period, hence, sought to allow the petition. 4. Per contra, Sri Suresh S. Bhat, learned counsel for respondent supports the impugned judgment of the Tribunal and submits that the Tribunal has rightly interpreted Rule 12 of GDS Rules and has come to the conclusion that the respondent is entitled for the payment sought. Learned counsel has placed reliance on the decision of the Coordinate Bench of this Court in W.P.No.43278/2017 (S-CAT) dtd. 25/1/2019 and seeks dismissal of the writ petition on the above grounds. 5. We have heard learned counsel for the petitioners and respondent and perused the material on record. 6. It is not in dispute that the petitioners have initiated disciplinary proceedings against the respondent and enquiry officer has submitted the enquiry report on 27/6/2017 and the petitioners have sought reply of the respondent on the enquiry report. It is also not in dispute that on submission of the reply by the respondent, the petitioner No.3 has passed an order dtd. 1/5/2018 imposing penalty of censure. It is also not in dispute that the respondent was under 'put off duty' from 9/3/2013 to 30/4/2018 and he has received subsistence allowance for the said period. The Tribunal while appreciating the contentions of the parties has recorded categorical finding at para 16 that the petitioners have themselves stated in their pleadings that the concept of put off duty for a GDS is akin to the concept of placing a regular Government servant under suspension and with regard to treating such suspension period on completion of departmental enquiry if the punishment is minor then the suspension is treated as wholly unjsutified and relied on the instruction issued by the DoP&T, GOI, vide OM No.11012/17/2013-Estt(A) dtd. 2/1/2014. The Tribunal has also relied on the OM No.11012/2015/85-Estt dtd. 2/1/2014. The Tribunal has also relied on the OM No.11012/2015/85-Estt dtd. 3/12/1985 and held that where minor penalty is imposed, then the concerned employee should be paid full pay and allowance for the suspension period by passing suitable orders. 7. On close scrutiny of the Rule 12 of GDS Rules, OM dtd. 2/1/2014 and OM dtd. 3/12/1985, we do not find error in the finding recorded by the Tribunal. 8. In the instant case, it is admitted that the petitioners have imposed penalty of censure on the respondent by taking lenient view in the matter considering the fact that the respondent was 61 years old and he had unblemished past service record. In our considered view, the respondent is entitled for the allowance as directed by the Tribunal and we do not find any error in the finding recorded by the Tribunal. The Coordinate Bench of this Court in W.P.No.43278/2017 (SCAT) dtd. 25/1/2019, in an identical fact situation has held that the concerned employee would be entitled for full pay and allowance for the period of suspension when minor penalty is imposed. 9. For the reasons recorded supra, we do not find any merit in the writ petition and the same is rejected.