K. SARADAMMA Vs. SUPDT. OF POST OFFICE

JUDGEMENT

(1.) PETITIONER ,while she was working as an Extra Departmental Branch Post Master,was put off duty as per memo,dated 31st December 1975 under R.9 of the E.D.A.( Conduct and Service)Rules(for short 'the Rules ').She was later on removed from service with effect from 31st January 1977, without giving her an opportunity to defend herself against the charge of misconduct.In O.P.4491 of 1977, this court set aside the order of removal on the ground of violation of Art.311,Clause(2)of the Constitution of India. In writ appeal 168 of 1979,the judgment was reversed and the O.P.was dismissed on the ground of delay.In Civil Appeal 3022 of 1980,the Supreme Court set aside the appellate judgment and remanded the appeal for fresh disposal.After remand,under Ext.P -1 judgment the appeal was dismissed and the judgment in O.P.was confirmed.Subsequently,the petitioner had been served with a memo,dated 26th February 1981 calling her for a further enquiry.The order also states that she is deemed to have been put off with effect from the date of earlier removal,31st January 1977.Ext.P -3 is the charge memo issued to her.In this O.P .,the petitioner challenges Exts.P -2 and P -3 and prays for the same being quashed and also for a direction to reinstate her in service and to pay her the arrears of salary and allowances from 31st December 1975 and for a direction to the respondent not to proceed in pursuance of Ext.P -3. The respondent has filed a counter affidavit and has adverted to the various averments in the O.P.

(2.) IT is the contention of the petitioner that the order putting her off has to be treated as something like an order of suspension and that this order has merged with the order of termination of her service and when the latter order was set aside by this court,the order of put off does not get revived and unless she is reinstated in service she cannot be put off again.According to the petitioner law does not permit the department to take the stand that she can be deemed to have been put off since such a contingency is not provided by the rules,though it is provided in the Central Services(Classification,Control and Appeal)Rules, 1965(for short 'the 1965 Rules '). Learned Central Government standing counsel rebutted these contentions .According to him,an order of put off cannot be equated with an order of suspension and the general principles governing an order of suspension will not apply to an order of put off and consequently the order of put off did not merge in the termination order and at any rate,it revived when the order of termination was set aside.Learned Counsel further contended that on the analogy of the principles in R. 10(4)and(5)of the 1965 Rules, there could be a deeming of the put off action with retrospective effect.

(3.) THERE can be no dispute that an order of suspension merges in the succeeding order of termination of service or dismissal and when the termination or dismissal order is set aside or declared illegal by a competent court,the order of suspension does not automatically got revived,see Om Prakash Gupta v. State of Uttar Pradesh(AIR 1955 SC 600)and H.L.Mehra v.Union of India(AIR 1974 SC 1281 ).Of course,this general principle will not apply in cases where there are provisions to the contrary,as provided in R.10(4)and(5)of the 1965 Rules - the general principles of law would in my opinion,apply to the action of put off also.I therefore hold that the order of put off passed against the petitioner merged or ceased to exist in law when the termination order was passed and when the termination order was set aside by this court,the order of put off did not get revived automatically.