UNION OF INDIA Vs. T P GOPINATH
LAWS(KER)-2003-3-125
HIGH COURT OF KERALA
Decided on March 26,2003

UNION OF INDIA Appellant
VERSUS
T.P.GOPINATH Respondents

JUDGEMENT

- (1.) The petitioners challenge Ext.P3 order dated 25.9.2001 of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.1244 of 1999. The petitioners herein are the respondents and the respondent herein is the petitioner in the O.A. which was allowed by the Central Administrative Tribunal.
(2.) The respondent while working as Telephone Inspector, Mattancherry was placed under suspension under Rule 10(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1985 (hereinafter referred to as the CCS (CCA) Rules ) with effect from 1.2.1989 on the ground that a criminal case against him was under investigation. After investigation the respondent was tried by the C.B.I. Court, Ernakulam for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The trial court convicted him for the aforesaid offences and sentenced him to undergo imprisonment for two years and to pay a fine of Rs.2000/- each under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Against the judgment of the trial court the respondent filed Criminal Appeal No.85 of 1993 in the High Court. The High Court in its judgment dated 21.7.1988 found that the prosecution failed to prove the case against the respondent beyond reasonable doubt and set aside the conviction and sentence. Therefore the Divisional Engineer, Telecom, Cochin as per his order dated 10.8.1998 revoked the order of suspension with immediate effect. Later, in his order dated 11.9.1998, the Principal General Manager, Telecom, Ernakulam stated that departmental proceedings were going to be contemplated against the respondent, that the pay and allowance drawn by the respondent prior to the date of suspension may be drawn and disbursed and that orders regarding regularization of suspension period and drawal of increment/OTBP would be issued separately after finalisation of the departmental proceedings. However, no departmental proceedings were initiated against the respondent. Thereafter the Principal General Manger, Cochin issued a show cause notice dated 6.5.1999 stating that the case of the respondent fell under sub rules (5) and (7) of Fundamental Rule 54-B and therefore it was proposed to limit the pay and allowances for the period of suspension to that of subsistence allowance already paid and to treat the period of suspension as on duty for the purpose of pension alone. The respondent was also called upon to forward his representation, if any, against the said proposal. The respondent submitted a representation dated 20.5.1999 contending that he was entitled to have the period of suspension treated as period spent on duty for all purposes under Fundamental Rule 54-B (4). However, the Deputy General Manager, Telecom passed an order dated 3.6.1999 directing that the pay and allowances of the respondent for the period under suspension be restricted to subsistence allowance already paid and to treat the period as on duty for the purpose of pension only. It was stated in the said order that the order was being passed under sub rules (5) and (7) of F.R. 54-B. Though the respondent filed appeal dated 30.6.1999 to the General Manager, Ernakulam SSA, the Appellate Authority by its order dated 10.9.1999 confirmed the order of the Deputy General Manager that the respondent will be entitled only to the subsistence allowance paid during the period under suspension and that the period of suspension will be counted as on duty only for the purpose of pension. Thereupon the respondent filed O.A.No.1244 of 1999 before the Central Administrative Tribunal, Ernakulam Bench challenging the order dated 10.9.1999 of the Appellate Authority (General Manager, Telecom, Ernakulam). The respondents in the O.A. (petitioners herein) contested the claim of the respondent by filing a reply statement in which it was contended that the period of suspension of the respondent was liable to be regularized only under sub rules (5) and (7) of F.R. 54-B. However, in the impugned order dated 25.9.2001 the Central Administrative Tribunal held that the period of suspension of the respondent was liable to be regularized under F.R. 54-B (3) and not under F.R. 54-B (5) and (7). The Tribunal set aside the order of the General Manger and directed the respondents in the O.A. to refix the pay of the applicant in the O.A. treating the period from 1.2.1989 to 10.8.1998 as duty for all purposes and to disburse to the applicant the entire pay and allowances for the said period. By the time the order was passed by the Tribunal the respondent had voluntarily retired from service and therefore the Tribunal directed the respondents in the O.A. to refix the retirement benefits of the applicant also accordingly. Aggrieved by the decision of the Central Administrative Tribunal the respondents in the O.A. filed this original petition. As per the interim order dated 11.2.2002 passed in C.M.P.No.7464 of 2002 the operation of the impugned order of the Tribunal was stayed pending disposal of the original petition.
(3.) The contentions urged by the petitioners and the respondent before the Tribunal were repeated before this court also. Hence the only point that arises for consideration is whether the period of suspension of the respondent is liable to be regularized under F.R. 54-B (3) or under F.R. 54-B (5) and (7).;


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