Kerala High Court

Union Of India vs Bindia.K.G on 4 February, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                                  2025:KER:12052
OP (CAT) NO. 93 OF 2017

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              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                  &
             THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
    TUESDAY, THE 4TH DAY OF FEBRUARY 2025 / 15TH MAGHA, 1946
                      OP (CAT) NO. 93 OF 2017
        AGAINST THE ORDER/JUDGMENT DATED 17.02.2017 IN OA NO.26
OF 2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

PETITIONERS/RESPONDENTS:

    1       UNION OF INDIA
            REPRESENTED BY THE SECRETARY TO GOVT. OF INDIA,
            DEPARTMENT OF POSTS, GOVERNMENT OF INDIA,
            NEW DELHI-110001

    2       THE CHIEF POSTMASTER GENERAL
            KERALA CIRCLE, TRIVANDRUM-695033

    3       THE SENIOR SUPERINTENDENT OF POST OFFICES
            THIRUVANANTHAPURAM NORTH DIVISION ,
            THIRUVANANTHAPURAM-695001

            BY ADV SRI.T.V.VINU, CGC

RESPONDENT/APPLICANT:

            BINDIA.K.G
            W/O.BIJUMON A.S., AGED 34 YEARS, POSTAL ASSISTANT,
            ATTINGAL H.O., DEPARTMENT OF POSTS,
            RESIDING AT KARTHIKA,PANCHAYATH OFFICE ROAD,
            VENJARAMOOD P.O.,THIRUVANANTHAPURAM-695607

            BY ADVS.
            SRI.SAJITH KUMAR V.
            VIVEK A.V.


        THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.02.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                    2025:KER:12052
OP (CAT) NO. 93 OF 2017

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                          JUDGMENT

Amit Rawal, J.

1. The present OP(CAT) is directed against the

judgment dated 17.02.2017 of Central Administrative

Tribunal, Ernakulam, in O.A.No.26 of 2017 whereby the

suspension continued beyond ninety(90) days was held to

be unsustainable. We have been informed that during the

pendency of the present O.P., respondent - applicant has

been reinstated into service on culmination of disciplinary

proceedings with imposition of minor penalty. As far as the

continuation of the suspension period beyond ninety(90)

days, Sri.T.V.Vinu has relied upon the findings of the

Division Bench of this Court in the judgment in O.P.

(CAT)No.34 of 2017 to contend that the call has to be taken

as per the fundamental Rule. The findings in paragraph No.9

of the judgment reads as under:

9. After hearing both sides, we are of the view that we need not now adjudicate the issue as to whether the 2025:KER:12052 OP (CAT) NO. 93 OF 2017

timelines covered in Sub-rule (6) & Sub-rule (7) of Rule 10 of CCS (CCA) Rules are indeed mandatory or directory or for that matter as to whether the timeline of 90 days stipulated in Sub-rule (6) of Rule 10 is only in relation to completion of the review process of suspension and not the actual matter of passing of the order of extension, etc. We are of the firm view that the original consideration of the regulation of the period of suspension should ordinarily be left to the full discretion of the statutory authority who is conferred with the original power under the provisions of Fundamental Rules which are statutory in nature. We need not even now say as to which is the applicable provision in the FR, as those are all matters which should engage the attention of the competent statutory authority who has to exercise the powers under the Fundamental Rules.

Suffice to say that the Tribunal was not right in at least holding as if the matter need not be left to the discretion of the statutory authority and that the Tribunal can decide that in such a case the period has to be regulated as full pay and allowances and as on duty for all purposes, as a matter of course. That, according to us, was a cardinal error in the decision making process of the Tribunal which would warrant interference at our hands in exercise of the powers of judicial review and superintendence conferred under Articles 226 & 227 of the Constitution of India. We are not resolving any other issues. Hence, it is ordered that the impugned direction of the Tribunal to the limited 2025:KER:12052 OP (CAT) NO. 93 OF 2017

extent it has ordered that the abovesaid extended period of suspension from 11.02.2016 onwards upto the date of reinstatement to be treated as duty for all purposes and should carry full pay and allowances, etc. will stand set aside. Consequently, the said matter in issue as to how to regulate the said extended period of suspension from service, ie., from the period from 10.02.2016 (date of expiry of the first 90 day period after coming into force of Annexure-A1 suspension order on 12.11.2015) upto to 16.02.2017, date of actual reinstatement of the applicant in service consequent to Ext.P2 order of the Tribunal, will stand remitted to the competent authority under the Fundamental Rules, to be decided in accordance with law. We are told that the competent authority under the FR is R3 in the O.A.(Superintendent of Post Offices). Hence the matter will stand remitted to the 3rd respondent in the O.A. for consideration of that issue afresh, and untrammeled and uninfluenced by the abovesaid directions of the Tribunal, which has now been quashed by this Court. The competent authority will immediately issue notice to the applicant proposing as to how the period should be regulated and also giving the crucial reasons for arriving at the said provisional conclusion, the show cause notice in that regard shall be duly issued by the competent authority as above within one month from the date of receipt of a copy of the judgment. Thereupon, the original applicant may file his reply in writing thereto, giving his version 2025:KER:12052 OP (CAT) NO. 93 OF 2017

as to why the said period has to be treated as duty for all purposes and as to why the said period would entitle him for getting the full pay and allowances, etc. and the reasons thereof. Thereafter the competent authority will afford reasonable opportunity of being heard to the applicant, either in person or through authorized counsel of his choice, if any and then should take a considered decision as to how the abovesaid period should be regulated, in accordance with the applicable provisions contained in the Fundamental Rules. Decision as above shall be taken within one month from the date of conclusion of hearing as above. We make it clear that we have not entered into the merits of the controversy as to how the period is to be regulated and all what we say is that the Tribunal should not have assumed that role of the statutory authority in this case and should have actually relegated the matter to the statutory authority to act strictly in accordance with the provisions contained in the statutory rules. The abovesaid orders and directions of the Tribunal at Ext.P2 final order dated 05.12.2016 in O.A.No.911 of 2016 will stand modified to the limited extent as above."

2. Sri.T.V.Vinu submits that Tribunal had allowed

the O.A. on the basis of the finding in O.A.911 of 2016

which was under challenge in O.P.(CAT) No.34 of 2017.

2025:KER:12052 OP (CAT) NO. 93 OF 2017

3. We thus modify the order under challenge

keeping in view the fact that respondent - applicant has

been taken back into service. Remit the matter to the

Petitioner No.3 to take a call with regard to the suspension

period beyond the period of ninety(90) days in accordance

with law, as expeditiously as possible, not later than

three(3) months from the date of receipt of copy of this

judgment.