JOSEPH D. KATTAMPALLY Vs. UNION OF INDIA

JUDGEMENT

(1.) THE , petitioner, an Extra Departmental Packer,falling within the ambit of Extra Departmental Agent as defined in R.2(b )(vi)of the rules relating to the Conduct and Service of the Posts and Telegraphs Extra Departmental Agents,hereinafter called the rules,has in this writ petition mainly prayed for a declaration that R.9 of the Rules "to the extent it denies subsistence allowance is unconstitutional,discriminatory,ultra vires and void " ;.It is not in dispute that he had availed of sanctioned leave of 180 days during the period from 1st June 1976 to 21st December 1976.According to the petitioner,he had obtained sanctioned leave thereafter also till 31st March 1977;this,however,it is not admitted by the respondents.In Para.2 of the counter affidavit sworn to by the 4th respondent it is stated that he was remaining continuously absent without leave for the period from 22nd December 1976 to 31st January 1977,and from 21st February 1977 onwards also.On 1st April 1977 the petitioner is alleged to have applied for "extention of leave "in the prescribed form for the period from 1st April 1977 to 30th June 1977. The 4th respondent's reply thereto dated 1st April 1977,a copy of which is marked as Ext.P -1,in its material portion reads as follows: - "You have applied for leave and had remained absent without the leave having been sanctioned.As you are not entitled to any leave at present the period of leave will be going to be treated as unauthorised absence and disciplinary action is going to be taken against you " ;. Subsequently the petitioner received from the 4th respondent another communication dated 7th April 1977,a copy of which is Ext.P -2,and that in its material portion reads as follows: - "Under R.9(1)of the Post and Telegraph Extra Departmental Agents 'Conduct and Service Rules,1964,Sri Joseph D.Kattampally,E.D.Packer,Kanjirappilly P.O .,is hereby put off duty with immediate effect.He is not entitled to any allowance during the period." Obviously it is the last sentence in Ext.P -2 communication that has provoked the filing of the writ petition.

(2.) SRI O.V.Radhakrishnan, the counsel for the petitioner,contended that the provisions contained in R.9 of the Rules which provide that an employee shall not be entitled to any allowance for the period during which he was put off duty pending enquiry into any complaint or allegation of misconduct against him is discriminatory and violative of Art.14 and 16 of the Constitution.He also submitted that by the decision of the Supreme Court in Superintendent of Post Offices v.P.K.Rajamma(AIR 1977 SC 1677)it has now been settled that the employment of an Extra Departmental Agent is in a post which exists apart from a person who happens to fill it at any particular time;though such a post is outside the regular civil services,there is no doubt that it is a post under the State.His argument is that once it is found that the Extra Departmental Agent is the holder of a civil post, it should automatically follow that he should be entitled to all the benefits to which any other person holding a civil post,is entitled to,and in that view it would be discriminatory to deny subsistence allowance for the period during which he is put off duty pending enquiry into the charges levelled against him,inasmuch as,as per R.53 of the Fundamental Rules, a government servant is entitled to subsistence allowance during the period of suspension.

(3.) IN the background mentioned above,let us now examine R.53 of the Fundamental Rules with reference to which the petitioner seeks relief. That rule provides: "F.R.53(1)A government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments,namely: -(i)* * * *(ii)in the case of any other government servant -(a)a subsistence allowance at an amount equal to the leave salary which the government servant would have drawn if he had been on leave on half average pay or on half pay and in addition,dearness allowance,if admissible on the basis of such leave salary; " Rule 5(2)of the Rules lays down that during leave,every Extra Departmental Agent should arrange for his work being carried on by a substitute who should be a person approved by the authority competent to sanction leave to him,and such approval shall be obtained in writing.R.5(3)of the rules provides that the allowances normally payable to an Extra Departmental Agent,shall,during leave,be paid to the approved substitute provided by him.The consolidated allowances payable to the various categories of Extra Departmental staff are stated in the O.5 -2/60 Committee,dated 24th December 1960 passed by the Director General,Posts and Telegraphs,with the approval of the President of India.It is also seen therein that after having considered the recommendations of the Committee of Enquiry on the allowances of extra Departmental employees,the President of India was pleased to decide that there would be no dearness allowance for extra departmental employees,and a consolidated allowance would alone be paid to them.As a matter of fact what is being paid to the Extra Departmental Agent is not salary and allowances,but only a consolidated allowance. The rate of allowance payable to the various categories stated in Order No.5 -2/60 -Committee dated,24th December 1960 has undergone various changes from time to time;however,the basic factor remains that what is payable to them is only a consolidated allowance,not any salary and allowance as in the case of other full time government servants.