Arvind Kumar vs Union Of India & Ors.

By Hon’ble Mr. Justice Om Prakash VII, Member (J)

This O.A. has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-

The brief facts of the case are that the applicant was initially engaged as G.D.S.-B.P.M., Sirsa Khurd, Sahaswan. On 03.08.2009, he was arrested in connection with a criminal case and was put off duty w.e.f. 04.08.2009. After being released on bail, he was allowed to resume duty vide order dated 01.10.2009. On 17.07.2018, the applicant was convicted by the learned Additional Sessions Judge, Budaun and sentenced to five years’ imprisonment. On the basis of his conviction, he was again put off duty under Rule 12(1)(a) of the G.D.S. (Conduct and Engagement) Rules, 2011. The applicant contends that the order of put off duty was not confirmed within the prescribed period and, therefore, could not have been subsequently revived by the impugned order dated 03.08.2018. The applicant submitted a representation against the said order. Thereafter, a charge-sheet dated 10.06.2019 was issued against him containing two charges. He submitted his reply and an Inquiry Officer was appointed. However, according to the applicant, despite the pendency of the disciplinary proceedings, he has not been reinstated in service. Hence, the present Original Application has been filed seeking appropriate relief.

Per contra, learned counsel for the respondents filed counter reply, wherein it is stated that the applicant, while working as G.D.S.-B.P.M., Sirsa Khurd, Sahaswan, was arrested on 03.08.2009 in connection with a criminal case and was put off duty. He was later released on bail and was allowed to resume duty. The applicant was again put off duty on 17.07.2018 after his conviction by the learned Additional Sessions Judge, Budaun. The said order was received by the competent authority on 23.07.2018 and was confirmed within the prescribed period of fifteen days vide order dated 03.08.2018. Though the applicant was granted bail by the Hon’ble High Court on 02.08.2018, the conviction was not set aside or stayed. Therefore, there was no ground to reinstate him in service. Thereafter, disciplinary proceedings were initiated against the applicant and a charge-sheet was issued on 10.06.2019. Subsequently, notices were issued to him under the applicable G.D.S. Rules. After considering his reply and the relevant facts, the competent authority, vide order dated 31.05.2021, imposed the punishment of dismissal from engagement. Thus, respondents stated in the counter affidavit that after the applicant was dismissed from engagement, there was no question of his reinstatement. Hence, the Original Application is liable to be dismissed.

The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A. and nothing new has been added.

I have heard Shri Santosh Kumar Kushwaha, learned counsel for the applicant and Shri Vinod Kumar Pandey, learned counsel for the respondents and perused the records.

Submission of the learned counsel for the applicant is that the order dated 17.07.2018 putting the applicant off duty was required to be confirmed by the competent authority within fifteen days in terms of Rule 12(2) of the G.D.S. (Conduct and Engagement) Rules, 2011 but the said period expired on 01.08.2018 and, therefore, the order dated 17.07.2018 became inoperative from 02.08.2018. Learned counsel for the applicant further submitted that the order dated 03.08.2018 confirming the earlier order was passed after expiry of the prescribed period of fifteen days. Therefore, an order which had already become inoperative, it could not have been revived by the respondents by passing the order dated 03.08.2018. The said order is, therefore, illegal and liable to be quashed. It is further submitted that no review of the order of put off duty was carried out by the competent authority although the applicant continued to remain off duty for a long period. Learned counsel for the applicant next submitted that under Rule 12(3) of the G.D.S. (Conduct and Engagement) Rules, 2011, the competent authority was required to consider the amount of compensation payable to the applicant where the period of put off duty exceeded ninety days. However, no such review or reasoned order was passed in the case of the applicant. Learned counsel for the applicant also submitted that the applicant had repeatedly represented against the order of put off duty, including his representation dated 16.08.2018 and further representation dated 21.06.2019, but no effective action was taken by the respondents. It is further submitted that although a charge-sheet was issued to the applicant on 10.06.2019, the disciplinary proceedings were not concluded for a considerable period. The applicant submitted his reply denying the charges and an Inquiry Officer was appointed. Thus, according to learned counsel, the applicant could not have been kept off duty indefinitely without proper review of the order. Learned counsel for the applicant has placed reliance upon the orders passed by the Bangalore Bench of this Tribunal in O.A. No. 601 of 2015, Panduranga Joshi Vs. Union of India and others, decided on 22.02.2016 and by this Tribunal in O.A. No. 654 of 2016, Hari Singh Vs. Union of India and others, decided on 30.11.2016. It is submitted that in those cases also the orders of put off duty were not reviewed in accordance with the prescribed procedure and relief was granted to the applicants. Thus he submitted that the order dated 17.07.2018 and the subsequent order dated 03.08.2018 cannot be sustained and the applicant is entitled to be put back on duty with consequential benefits.

Learned counsel for the respondents, on the other hand, submitted that the order dated 17.07.2018 putting the applicant off duty was passed after his conviction by the learned Additional Sessions Judge, Budaun. The said order was received in the office of the Superintendent of Post Offices, Budaun Division on 23.07.2018 and was duly confirmed vide order dated 03.08.2018. Thus, the order was confirmed within the prescribed period and there was no delay on the part of the respondents. Learned counsel for the respondents further submitted that the applicant was granted bail by the Hon’ble High Court on 02.08.2018, but the grant of bail did not set aside his conviction. Therefore, merely because the applicant was granted bail, he could not claim reinstatement in service. The conviction recorded by the criminal court continued to remain in force. It is further submitted that the applicant was not kept off duty merely on account of the earlier criminal case. His subsequent put off duty was the result of his conviction by the competent criminal court. Therefore, the earlier order dated 01.10.2009, by which he was allowed to resume duty after grant of bail, has no bearing on the present case. Learned counsel for the respondents next submitted that disciplinary action was thereafter taken against the applicant. A charge-sheet was issued to him on 10.06.2019 and the applicant submitted his reply. Subsequently, in view of his conviction in the criminal case, notices dated 15.03.2021 and 13.04.2021 were issued to him under the applicable G.D.S. Rules. The applicant was given an opportunity to submit his representation, which was duly considered by the competent authority. Learned counsel for the respondents further submitted that after considering the entire matter and the representation of the applicant, the competent authority passed the order dated 31.05.2021 imposing the punishment of “dismissal from engagement” upon the applicant. Therefore, after the said order of dismissal, there was no question of putting the applicant back on duty. Learned counsel for the respondents in regard the contention of the applicant regarding review of put off duty and payment of compensation submitted that the applicant cannot claim reinstatement on that ground after his subsequent dismissal from engagement. He further submitted that the judgments relied upon by the applicant in Panduranga Joshi (supra) and Hari Singh (supra) are distinguishable on their own facts and cannot be applied to the present case, particularly when the applicant was subsequently dismissed from engagement after following the prescribed procedure. Thus, learned counsel for the respondents submitted that there is no illegality in the action taken by the respondents and the Original Application, being devoid of merit, is liable to be dismissed.

I have considered the rival submissions and perused the pleadings and documents available on record.

The main issue for consideration is whether the order dated 17.07.2018 putting the applicant off duty could have been confirmed by the respondent No. 2 vide order dated 03.08.2018. It is not in dispute that the applicant was put off duty by the Inspector of Posts, Sahaswan Sub-Division, vide order dated 17.07.2018. It is also not in dispute that the said order was received in the office of the Superintendent of Posts, Budaun Division, on 23.07.2018 and was confirmed vide order dated 03.08.2018.

Rule 12(2) of the G.D.S. (Conduct and Engagement) Rules, 2011 reads as under:-

Thus, in view of Rule 12(2) of the G.D.S. (Conduct and Engagement) Rules, 2011 the object of the provision is to ensure that an order of put off duty passed by a subordinate authority does not continue beyond the prescribed period without being examined and confirmed by the competent authority.

In the present case, the order of put off duty was passed on 17.07.2018. Therefore, the period of fifteen days has to be counted from the date of the order itself. The order was required to be confirmed within the prescribed period. However, the confirmation order was passed only on 03.08.2018. Thus, on the face of the record, the confirmation was not made within fifteen days from 17.07.2018.

The contention of the respondents that the order was received in the office of the Superintendent of Posts on 23.07.2018 and was confirmed on 03.08.2018, therefore, it does not answer the requirement of Rule 12(2) of the aforesaid Rule. The Rule refers to fifteen days from the date of the order of put off duty and not fifteen days from the date of its receipt by the confirming authority. Once the prescribed period of fifteen days expired without confirmation or cancellation by the competent authority, the order dated 17.07.2018 could not continue to operate. The subsequent order dated 03.08.2018, therefore, could not revive an order which had already ceased to be effective by operation of the Rule.

Thus, I am of the considered view that the order dated 17.07.2018 had ceased to be effective on expiry of the prescribed period and the subsequent order dated 03.08.2018 could not legally revive the same. Accordingly, the order dated 03.08.2018 confirming the order dated 17.07.2018 cannot be sustained.

In view of the above observations, the O.A. is allowed and the impugned orders dated 17.07.2018 and 03.08.2018, whereby the applicant was placed on put off duty, are held to be unsustainable in law and are hereby quashed. Applicant will be entitled for all consequential benefits thereon as per Rules provided under Rule 12 of GDS (Conduct & Engagement) Rules 2011. The aforesaid exercise be completed within a period of 3 months from the date of receipt of a certified copy of this order. There shall be no order as to costs. All associated M.As. stand disposed of.