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Judgment
PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:
The applicant has approached this Tribunal to seek the following relief:
“8.1.The Hon'ble tribunal be pleased to direct the respondents to allow the applicant to resume his duty as GDS BPM, Khopenkuchi B.O in Guwahati Division and quash the impugned punishment order under Memo No. vide order No. A/Х-113/ Khopenkuchi B.O dated 16.12.2020 (Annexure A 1) issued by the respondent No. 3 and direct the authority to revoke the applicant with effect from 23.03.2023 and other payments consequent upon the reinstatement in his original post.
8.2.Pleased to direct the respondents to revoke the put off duty vide order No. A/X-113/ Khopenkuchi B.O dated 16.12.2020 and direct the respondent No.3 to pay the subsistence allowances/ex gratia payments equal to 50% Of TRCA last drawn by the applicant since 03.12.2020 up to date. The ex gratia has been stopped from 1st of April'24 without showing any cause.
8.3.Any other relief (s) which the applicant is entitled to as the Hon'ble Tribunal may deem fit and proper.”
This Application is made praying for a direction upon the respondents to reinstate in his parent post of GDS Branch Post master, Khopenikuchi B.O wherefrom he has been put off from duty vide order No.AX/Khopenikuchi В.О dated 16.12.2020 issued by the Sr. Superintendent of Post offices, Guwahati Division.
Brief facts of the case as submitted by learned counsel for the applicant are that, Applicant was selected as GDS Branch Postmaster, Khopenikuchi B.O.by the Sr. Superintendent of Post offices, Guwahati division, Guwahati. He joined in the Khopenikuchi B.O on 01.04.1999. Since then he has been working there permanently.
That, while he was serving as GDS BPM, Khopenikuchi Branch Post office, an FIR was filed against 15 villagers along with him on 20.07.2020 at Hajo police station under No.705/2020 under section 143/365/320 dated 20.07.2020 and he had been arrested on 03.12.2020 by the police and remanded to judicial custody by the Judicial Magistrate, Hajo. That, after 90 days of statutory period of jail custody, the police could not submit any charge sheet against the applicant and the Learned Magistrate has granted him bail on default of Rs. 20,000/-vide order dated 19.07.2023.
Since there was criminal case pending, he has been placed on put off duty from the post of BPM, Khopenikuchi vide order dated 16.12.2020 by the appointing authority.
3. That the after getting the bail, applicant represented before the Sr. Supdt. Of post offices, Guwahati division, Guwahati praying for grant of subsistence allowance i.e payment of ex gratia equal to 50% of his last pay. However, the Sr. Superintendent of Post offices, Guwahati Division who is the competent authority for making arrangement to revoke him in the post of GDSBPM, Khopenikuchi B.O, did not take any action to grant him subsistence allowance nor to reinstate him. Moreover, no disciplinary proceeding has been initiated by the respondents authorities against the applicant till date nor reviewed/ extended the order of put off duty dated 16.12.2020 after expiry of 90 days.
4. Earlier he had filed one O.A No.040/0297/2023 which was disposed of on 06.03.2024 with directions to consider his representations dated 16.06.2021 and 21.06.2023. In compliance to the order dated 06.03.2024, applicant was paid subsistence allowance upto 31.03.2024 but denied to re instate him in the post of BPМ, Khopenikuchi B.O.
Sri D. N. Sharma, learned counsel for the applicant submits that it is a settled law that if no charge sheet is issued after a period of 90 days from the date of suspension/ put off duty, the official in suspension/ put off duty should be reinstated in his original post. In the case of Ajoy choudhury Vs Union of India reported in (2015) 7 SCC 291, the Hon’ble Supreme Court has held that the currency of suspension order should not extend beyond three months if within this period the memorandum of charges / charge sheet is not served on the delinquent officer/employee; If the memorandum of charge / charge sheet is served a reasoned order must be passed for the extension of the suspension. In the instant case, the applicant was put off from service on 03.12.2020 and no review was made after 90 days as prescribed. However, when the applicant submitted representation on 16.06.2021, the authority concern should have review his case of suspension and subsistence allowance due to him.
Learned counsel for the applicant further states that as per the guideline for put off duty, the instructions under letter No. 294/90- (E) I trg dated 26.07.1990 below Rule 12 of GDS (conduct and Engagement) Rules, 2011 stated as under:
"3.It is also necessary that the disciplinary authority makes every effort to finalise the disciplinary proceedings and passed final orders so that an EDA (now called as GDS) 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 finalisation of disciplinary cases within this period. If due to unavoidable reasons, it is not possible to finalise the 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 finalisation of the case.....”
Respondents in their reply have stated that applicant was taken into police custody on 03.12.2020 in connection with Hajo P.S.Case No. 705/20 under Section 143/365/302 IPC and therefore on the basis of the report submitted by the Inspector of Posts, Guwahati East Sub-Division, the Applicant was placed under Put-off duty as per the provision of Rule 12(1)(b) of GDS (Conduct & Engagement) Rules, 2020. -3 Moreover, as per Director General (Posts) Instructions 3(2)(e) under Rule 12 vide Letter No.294/90-(E) 1 Trg dated 26.07.1990, an EDA (now GDS) against whom a criminal charge involving moral turpitude is pending, may be put-off duty during the period when he is actually detained in custody or imprisoned or enlarged on bail.
That, on receipt of the representation dated 21.06.2023 from the Applicant requesting for ex-gratia payment for the period of put-off duty, the authority has sanctioned ex-gratia payment for the period vide Office Order No. AX 113/GDS/Khopenikuchi BO dated 20.11.2023.
Applicant has been placed on put-off duty considering his involvement in criminal case and as such the provisions applicable to a disciplinary proceeding do not squarely applicable in criminal case. The Applicant is facing the trial in the said criminal case. Moreover, the admissible ex-gratia payment has been made to the Applicant. It may be mentioned here that the ex-gratia payment has been enhanced by 50% of last drawn compensation by the authority vide Office Order No. AX 113/GDS/Khopenikuchi BO dated 04.07.2024.
That, at present the Applicant is enlarged on bail and the Criminal case initiated against him is still pending. The matter of framing charges against the applicant in disciplinary proceedings would depend upon his conviction/acquittal in the criminal case.
We have heard the parties and perused the records.
It is admitted fact that, Applicant while he was working as GDS BPM was taken into police custody on 03.12.2020 in connection with Hajo P.S.Case No. 705/20 under Section 143/365/302 IPC, which is pending before the competent Court. He was arrested by Police and remained in Jail for 90 days and since the police could not submit any charge sheet against the applicant, he was given default bail.
Respondent department has already suspended him and by this O.A, he is seeking reinstatement. He had earlier filed one O.A which was disposed of vide order dated 06.03.2024 and respondents were direct to consider his representations 16.06.2021 and 21.06.2023 for reinstatement. Respondents have considered the representations and rejected vide speaking order dated 24.04.2024 (Annexure A/2), in which, the same has not been challenged by the applicant in this O.A also.
Having heard the learned counsel for the parties, we have come to the conclusion that it is not the case of the applicant that no charge sheet has been filed by the State in the criminal case under Section 143/365/302 IPC that he should be reinstated but here chargesheet has been filed and the trial is going on i.e heinous crime and we cannot grant liberty to an accused for reinstatement at this stage until and unless he is acquitted by the learned trial court.
So we deem it fit to dispose of this O.A with a direction upon the respondents that, in case he is acquitted by the trial court, respondents are directed to consider him for reinstatement within 30 days after the passing of order from the Trial Court. Ordered accordingly.
With the above directions, the O.A is disposed of. No costs.