Partly allowed

Lourd Kunjumon v. Union of India

Kerala HC1 Nov 2013WP(C)/24358/2008

Case brief

AI extract

What is this about?

The Court quashed the Respondents' order declaring the petitioner's husband's dismissal period as non-duty without payment. It observed that since dismissal was set aside on non-compliance with Article 311 without merit-based exoneration, Fundamental Rules 54-A(2) applied instead of 54-B, and the matter was remitted for fresh consideration.

What did the court decide?

Ext.P10 order quashed to the extent it treated the dismissal period as non-duty. Matter remitted to 4th respondent to reconsider afresh under F.R.54-A (2).

Lourd Kunjumon Vs Union of India — Pension and Retirement Benefits | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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FRIDAY, THE 1ST DAY OF NOVEMBER 2013/10TH KARTHIKA, 1935

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WP(C).No. 24358 of 2008 (Y)

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PETITIONER(S):

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LOURD KUNJUMON, WIFE OF LATE SHRI.P.KUNJUMON, LOURD BHAVAN, MAYYANAD.P.O, KOLLAM, 691303.

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BY ADVS.SRI.V.JOHN MANI SRI.MAHESH V RAMAKRISHNAN

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RESPONDENT(S):

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1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO THE MINISTRY OF HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI.

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2. THE DIRECTOR GENERAL, CENTRAL RESERVE POLIFE FORCE, C.G.O.COMPLEX, NEW DELHI.

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3. THE INSPECTOR GENERAL OF POLICE, CENTRAL RESERVE POLICE FORCE, BANJARA HILLS, HYDERABAD.14.

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4. THE ADDL. DEPUTY INSPECTOR GENERAL, GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, AVADI, CHENNAI.65.

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5. COMMANDANT, GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, AVADI, CHENNAI.

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6. THE DEPUTY INSPECTOR GENERAL, GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, AVADI CHENNAI.65.

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BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 24358 of 2008 (Y)

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APPENDIX

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PETITIONERS' EXHIBITS

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P1: COPY OF THE MEDICAL REPORT DATED 21/12/82 ISSUED BY THE ASST.SUPERINTENDENT, GOVERNMENT OPTHALMIC HOSPITAL, MADRAS.

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P2: COPY OF THE MEDICAL REPORT DATED 12/4/83

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P3: COPY OF THE CERTIFICATE DATED 2/5/83

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P4: COPY OF THE MEMORANDUM NO.P.VII-4/85-GC-2, ISSUED BY THE ADDL.DIGP, G, AVADI DATED 29/11/85.

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P5: COPY OF THE ORDER NO.P.VIII-1/86-EC-3 DATED 5/4/86

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P6: COPY OF THE JUDGMENT DATED 27/8/91 IN WP.NO.9459/1983 OF THE HON'BLE HIGH COURT OF MADRAS.

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P7: COPY OF THE JUDGMENT DATED 22/6/92, IN O.P.NO.7895/1992

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P8: COPY OF THE ORDER DATED 31/8/92 OF THE 2ND RESPONDENT

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P9: COPY OF THE JUDGMENT DATED 15/11/2001, IN O.P.NO.8668 OF 1993

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P10: COPY OF THE ORDER NO.J II-B/83-EC II DATED 14/4/2003

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P11: COPY OF THE MEDICAL REPORT DATED 23/8/2003 ISSUED BY THE SUPERINTEDENT, GOVT.OPHTHALMIC HOSPITAL EGMORE.

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P12: COPY OF THE APPEAL DATED 2/11/2003 BEFOR THE 6TH RESPONDENT.

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P13: COPY OF THE OFFICE ORDER NO.P.III.110/2003.GC.PEN DATED 7/11/2003

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P14: COPY OF THE REPRESENTATION FILED BY SHRI.P.KUNJUMON DATED 9/12/2005

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P15: COPY OF THE REPLY DATED 26/4/2006 ISSUED BY THE R4TH RESPONDENT. RESPONDENTS' EXHIBITS

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R1(A): COPY OF THE ORDER NO.P.VIII-1/1980 EC-III DATED 5/1/86

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R1(B): COPY OF THE JUDGMENT DATED 7/8/91

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R1(C): COPY OF THE LETTER NO.J-II-8/83-EC-II DATED 23/10/1991

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R1(D): COPY OF THE GOI ORDER NO.3 BELOW FR-51B

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R1E): COPY OF THE O/O NO.P-III 110/2003-GC PEN DATED 6/11/2003.

/ TRUE COPY /

P.S. TO JUDGE

A.V. RAMAKRISHNA PILLAI, J.

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-------------------------------------------------W.P.(C) No. 24358 of 2008

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Dated this the 1^st day of November, 2013

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J U D G M E N T

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Spoke and the judgment dated 11.10.2013 is

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recalled.

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Ext.P10 order insofar as it relates to the

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treatment of period of dismissal of the husband of the petitioner as period of non-duty is under challenge in this Writ Petition.

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The petitioner is the widow of Late Kunjumon, an ex-servicemen of CRPF. The respondents, by Ext.P5 order, dismissed Kunjumon from service, which was set aside by this Court by Ext.P9 judgment dated 15.11.2001. Consequent to the same, Kunjumon was reinstated in service by Ext.P10 order. However, by Ext.P10, the period of dismissal was declared as non-duty period. The petitioner is aggrieved by the action of the respondents invalidating her husband from service on erroneous

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W.P.(C) No. 24358 of 2008

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..2..

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consideration of the facts and the non-disbursal of arrears of pay, to which he is legally entitled to. That is why, the petitioner has approached this Court.

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The penultimate paragraph of Ext.P10 shows that, for treating the period of dismissal as non-duty period, the respondent has relied on Rule 54-B of Fundamental Rules relating to dismissal, removal and suspension of Central Government employees.

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The learned counsel for the petitioner invited

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the attention of this Court to F.R.54-B, which reads as follows:

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“F.R.54-B(1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order-

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(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement as the case may be; and (b) whether or not the said period shall be treated as a period spend on duty.”

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According to the learned counsel for the

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petitioner, the rules which should have been followed by

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the respondents is F.R.54-A instead of F.R.54-B, which

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W.P.(C) No. 24358 of 2008

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..3..

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reads as follows:

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“F.R.54-A (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court.”

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7. The learned counsel for the respondents per

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contra submitted that the relevant rule to be followed is

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F.R.54-A (2), which reads as follows:

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“(2)(i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of noncompliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any submitted by him, in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice:

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(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54.”

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W.P.(C) No. 24358 of 2008

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..4..

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It is relevant to note that the interference of the

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court with the removal of the petitioner's husband from service was on the ground of noncompliance with the requirement of Clause (1) and (2) of Article 311 of the Constitution of India. As rightly pointed out by the learned counsel for the respondents as the petitioner's husband was not exonerated on merits, the proper course open is, to follow F.R.54-A (2).

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In the result, the writ petition is disposed of. Ext.P10 order insofar as the same rendering the intervening period of dismissal to the date of reinstatement, i.e., the dismissal of the late Kunjumon to the date of reinstatement, i.e., with effect from 05.04.1986 to 13.04.2003, as non-duty for all purpose, is quashed.

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The matter is remitted to the 4^th respondent to reconsider the matter afresh in accordance with F.R.54-A (2). For this purpose, the petitioner shall be at liberty to file a fresh representation before the 4^th respondent,

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W.P.(C) No. 24358 of 2008

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..5..

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which shall be considered within a period of one month. In the event of the petitioner filing a representation, the 4^th respondent shall reconsider the matter afresh and pass orders within a period of three months.

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Sd/- A.V. RAMAKRISHNA PILLAI, JUDGE

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bka/-

Lourd Kunjumon v. Union of India

Case brief

What is this about?

What did the court decide?

Lourd Kunjumon v. Union of India

Case brief

What is this about?

What did the court decide?

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