(Querist) 24 July 2011
This query is : Resolved
Please help solve the problem below:
I joined my service on 4th September, 1996 as a UDC.
I remained absent(un-authorised from 02.01.2001 to 29.09.2001 i.e for 271 days)
I rejoined my duty on 01.10.2001 and applied for Extra ordinary Leave in order to regularise the absence period on 19.10.2001
In contrary, I was suspended instead on 16.04.2002(i.e after 6 months & 15 days of my joining and after 5 months and 28 days of application for the leave of the said absence period)to enquire into unauthorised absence period.
The Inquiry was proposed to be held into the charges of unauthorized absence framed against me as per the procedures to impose Major Penalty under the provision of Rule 14 of Central Civil Service (Classification, Control and Appeal) Rule, 1965 by the Authority. Accordingly, the inquiry was held as per the procedures to impose Major Penalty.
After the aforesaid inquiry was over, finding no ground for imposing major penalty under any penal provision of the CCS(CCA)Rules, 1965, the suspension was revoked with immediate effect from 27/10/2004 and merely a minor penalty of withholding one periodical increment without any cumulative effect as defined in Sub-rule (iv) of Rule 11 of the CCS (CCA) Rules, 1965 was imposed.
Further, the authority ordered that the said period of suspension w.e.f 16/04/2002 to 26/10/2004 in respect of me is not to be treated as on duty for any purpose, which is violative of the Order of the Department of personnel & Training, Govt. of India Order No: G.I, Dept. of Per. & Trg., O.M. No. 11012/15/85-Estt.(A), dated the 3rd December, 1985 wherein it is stated, "where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR 54-B and the employee concerned should, therefore, be full pay and allowances for the period of suspension by passing a suitable order under FR 54-B"
Now the questions concerning me are:
1. Whether the above circumstances can withstand in the court of law?
2. Where can I find the aforesaid Order of the GOI(I have thoroughly searched in net but to no avail)as the merely citing the order No. as given in SWAMY'S HANDBOOK is not accepted by the court.
(Expert) 25 July 2011
Why can't you obtain a copy of the said O.M. from the DOPT through an application under RTI Act?
(Expert) 26 July 2011
Your observation is correct, as suspension on account of major penalty charge sheet, if ends with any minor penalty, would automatically be treated as part of duty.
You may refer Administrative Instruction No. (3) below FR 54(B) of Swamy's Compilation of FR & SR Part-I.
Your can also find the said ruling at the website of Ministry of Personal, Public Grievance & Pension, at the following Link, as a part of aqualifying service under Pension Rules: http://persmin.nic.in/pension/rules/pencomp3.htm#Suspension%20should%20be%20held%20wholly%20unjustified%20when%20the%20proceedings%20end%20with%20minor%20penalty
You can refer both the documents in your court case, if you decide to launch.
However, I must advise you to first prefer your appeal to the Appellate Authority, if not already submitted and wait for the decision, as CAT can ask you whether you have exhausted or not all the channels of hierarchy of Discipline & Appeal Rules of the department.
(Expert) 28 July 2011
Go through the AIR manuals for recent judgements.