Central Administrative Tribunal - Mumbai
Shiva Shankar Mamidi vs Employees Providend Fund Organisation ... on 15 December, 2023
foo ' Be) berg atl C3 Pea ky oa _ hy 1900) Ka Lan) CENTRAL ADMINISTRATIVE TRIBUNAL MUMBA! BENCH, MUMBAI ORIGINAL APPLICATION NO.145/2023 | Order Reserved: &° day of October, 2028 Order Pronounced: 15° day of December, 2023 CORAM: HON'BLE JUSTICE M.G.SEWLIKAR, MEMBER (J) | Shiva Shankar Mamidi Aged about 49 years, S/o Sh M Eshwaraian, Data Processing Assistant, EPFO, Add. Regional Office Bhopal, Res Add: House No, 13, Dwarkapuri Colony, Sultanabad, Bhopal _. 452003 Email: [email protected] Mobile : 7208811750 . Applicant {By Advocate Mr. Rajeev Kumar) VERSUS 7. Union of India Through Secretary, Ministry of Labour, Shram Shakti Bhawan, Raff Marg, New Delhi- 170007. Email: secy- jabounhaic.in. New Delhi- 170068 Email: [email protected] .. Respondents (By Advocate Mr. Gunjan Choubey) 2... Central Provident Fund Commussioner, Employees' Provident me ' . Fund Organization, Bhavishya Nidhi Bhawan 14, Bhikaji Cama Place, | 2 OA No. 145/2023 ORDER
By this Application, the applicant is seeking the relief of enhancement in the subsistence allowance with interest at the rate of 15% per annum.
i. Facts in brief are that the applicant joined Employ-
ees' Provident Fund Organization as Data Entry Operator --
Grade 'A' at RO, EPFO, Nizamabad, Telangana on 2gth March, 1988. Since, 2010, the applicant has been working at EPFO RO Kandivali Mumbai as Data Processing |
2. A case of Fraudulent claim of Provident fund amount was detected at EPFO Regional Office at Kan-
divall Malad, Mumbai in the year 2021 pertaining to the claims made during the period from the year 2019 to June, 2021. Subsequently, FIR came to be registered on 31° December, 2021 under Sections 420, 120B, 409, 468 and 471 of IPC and Section 13(1}(a) of the Prevention of Corruption Act, 1988 against the applicant. The applicant was placed under suspension with effect from 25" Au- gust, 2021 and continues to be under suspension. CBI filed charge sheet on 10 May; 2022 before the CBI Spe- clal Court at Rouse Avenue, New Dethi and the case is -
pending.
3. It is the case of the applicant that the respondents - allowed him to draw subsistence allowance at the rate of 50 percent of leave salary as payable during half pay _ leave as admissible to him during the suspension period.
in terms of FR 53, subsistence allowance ought to have been enhanced to 75%. However, respondents did not enhance the amount of subsistence allowance. The sus- pension of the applicant is being continued with the sub- sistence allowance remaining unchanged: By the Order dated 6* February, 2023, Suspension Review Committee reviewed suspension of the applicant and continued sus- pension for a further. period of 90 days ie, up to 16"
May, 2023 keeping the suspension allowance unchanged i.e. equal to leave salary payable during half pay leave. This Order, hereinafter referred to as impugned order iS under challenge in this OA. .
4. Respondents filed théir reply. Respondents conten- ded that enquiry in respect of misconduct and criminal case are pending against the applicant. Facts of the case were placed before the Suspension Review Committee which after due deliberation took a decision to extend the period of suspension of the applicant. The applicant is supposed to co-operate in the ongoing enquiry with the respondents to conclude the case fi- nally. Enquiry is conducted in expeditious manner. The competent authority on the recommendation of the Sus- oension Review Committee has extended the suspension period of applicant beyond 90 days. it has therefore, | orayed forthe dismissal of the Application.
§. | have heard Mr. Rajeev Kumar, learned counsel for' for the respondents.
6. Learned counsel for the applicant submitted that In terms of FR 53, if the period of suspension exceeds 90 6 C4 No. 1445/2023 days, the Suspension Review Committee has to enhance the subsistence allowance to 75%. The Suspension Re- _ view Committee can refuse to enhance the subsistence allowance to 75% only in one contingency and that is the delinquent is responsible for the delay in completion of the enquiry. He submitted that respondents in their reply have not brought anything on record to show that the applicant was responsible for the delay in completion of the enquiry. The respondents, therefore, ought to have -- enhanced the subsistence allowance to 75%. He has _ Placed reliance on the following decisions.
(i) Neeraj Singh Vs. Union of india & Ors, OA No, | 613/2021, CAT, Mumbai Bench, Decided on 26° September, 2022.
Tt Sac ¢ ma OA No. 48/2083 wo ah vd ~af
(ii) Rajinder Kumar Mirg Vs. Union of india & Ors, OA NO. 513/2014, CAT, Principal Bench.
(ii) G. Antonysamy v. Assistant Director of Survey And Land Records, Kerala High Court, 2017 SCC ONLINE MAD 2890.
fiv) Sunil Kumar v. State of Bihar, Patna High Court, 4017 SCC ONLINE PAT 2116.
(v) B.D. Shetty and Others Vs. M/S. CEAT LTD. AND AN- OTHER, Supreme Court, CASE NO. Appeol (civil) 7382 of 2021.
7. Learned counsel for the respondents submitted that it is not obligatory for the respondents to enhance the subsistence allowance. It is the discretion of the respondents whether to enhance subsistence allowance g OA No, 145/2023 or not. After a due deliberation, the respondents took a conscious decision not to enhance the amount of subsist- ence allowance, No fault can be found with this decision of the Review Committee. Therefore, the Application has to be dismissed.
8. | have given thoughtful consideration to the submis- sions advanced by learned counsel on both the sides. it is not in dispute that the applicant was placed under sus- _ pension by the Order dated 25 August, 2021. The sus- pension was reviewed from time to time. By the Order - _ dated 6" February, 2023, it has been extended up to 16 | May, 2023. The subsistence allowance has remained un- changed i.e. equal to leave salary payable during half pay leave.
9 OA No. 145/2023 4FR 53 reads thus:-
"(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} in the case of a Commissioned Officer of the Indi-
an Medical Department or a Warrant Officer in civil employ wha is liable to revert to Medical Duty, the pay and allowance to which he would have been entitled had he been suspended while in milft-. 6.6.-.-.0-. arvernnployment;
{ii} in the case of any ether 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 holf-- average pay or on half pay and in addition, dearness aliowance, if admissible on such leave salary:
Provided that where the period of suspension ex- ceeds three months, the authority which made or is deemed to have made the order of suspension shall. be competent to vary the amount of subsistence al-_ oo. cous es _ lowance for any period subsequent to the period of one the _ first three months as follows:-
(i) the amount of subsistence allowance may be in-
creased by a suitable amount; not exceeding 50% of the subsistence allowance admissible during the period of the first three months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Government servont;
40 OA No.145/2023the amount of subsistence allowance may be in- creased by a suitable amount; not exceeding 50% of the subsistence allowance admissible during ine peri- od by the first three months, if in the opinion of the said authority, the period of suspening has been ofrolonged for reasons to be recorded in writing not directly attributable to the Government servant:
(ii) the amount of subsistence allowance may be re-
duce by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing, directly attributable to the Gov- ernmentservant;
(iif) the rate of Dearners sander Kumar Move been red on the increased oar, as the case may be, the Ravinder Kumar Mirg vs Union Of India Through on 18 March, 2015 decreased amount of suoss Allow- ance will be bassidenter sub-clauses {i) and (il) above.
(b) Any other compensatory allowances admissible Government servant was in receipt on the date of Suspension subject to the fulfillment of ather condi- tions laid dawn for the drawal of such allowances:
(2) No payment under sub-rule (1) shall be made un-
less the Government servant furnishes a certificate that he is not engaged in any other employment, business, 'profession or vocation:
Provided that in the case of a Government servant ~ from time to time-on the basis of pay of which the es 1 OA No.1 45/2023 dismissed, removed or compulsorily retired from ser- vice, whe is deemed to have been placed or to con- tinue to be under suspension from the date of such dismissal or removal or compulsory retirement, un- der sub-rule (3) or sub-rule (4) of Rule 12 af the Cent- ral Civil Services (Classification, Control and Appeal) Rules, 1957, and who fails to produce such a certific- ate for any period or periods during which he is deemed to be placed or to continue to be under sus- pension, he shall be entitled to the subsistence al- flowance and other allowances equal to the amount by which his earnings during such period or periods, as the case may be, fall short of the armount of sub- sistence allowance and other allowances that would otherwise be admissible to him; where the subsist- ence allowance and other allowances admissibie to him are equal to or less than the amount earned by him, nothing in this praviso shall apply to him."
40. In terms of the aforesaid rule, the subsistence allow- - | ~ ance is admissible to an employee under suspension for the first three months of suspension an@ amount equal to 50% of the pay plus dearness allowance. If the suspen-
sion period exceeds three months and in the opinion of the competent authority, the period of suspension has 12 GA No. lt5 £2023 been prolonged for reasons to be recorded in writing, not directly attributable to the Government servants, the amount of subsistence allowance may be increased by a suitable amount not exceeding 50% of the subsistence al- lowance admissible during the period of first three months. In the case of Ravinder Kumar Mirg versus Uni- on of india & others in OA No. 513/2014, Principal Bench of Central Administrative Tribunal in para 13 it has been held thus:-
"According to the aforesaid rule, the subsistence alfow- ace is admissible to Suspended employee for the first three months of suspension an amount equal to 50% of Ses Be eget ihe pay plus dearness allowance. if the suspension -- period exceeds 3 months and in the opinion of the cam- petent authority, the period of suspension has been pro- longed for reasons not directly attributable to the gov ermment servant, the subsistence allowance may 68 in- creased by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of the first three months. But the period of suspension fs Prolonged beyand three months due fo reasons directly attributable to Government servant, the subsistence al- lowance can also be reduced by @ suitable amount not exceeding 50% of the subsistence allowance admiss-
13 OA No, 145/2223 ible during the first three manths. For this purpose, the competent authority has to record his reasons for doing uF so.
ii. Enhancement in subsistence allowance can be cde- nied only when delay in completion of enquiry is attribut- able to the delinquent. in the case at hand, there is not even a whisper in the reply that the inquiry was delayed because of the applicant. Thus, there is nothing on record to show that the applicant was responsible for de-
lay in completion of the inquiry.
12. Gravity of offence is not a criteria for denying en-
lowance js paid to fulfil the basic needs of the delinquent and the delinquent's family. When the applicant is not re- sponsible for the delay In completion of the inquiry, there was no justification in not granting enhancement in : ? NE Yoo oF Sy RD 14 DA No. b45 2023 the subsistence allowance. The applicant is, therefore, entitled to enhancement in subsistence allowance.
13. In the case at hand, the applicant was placed under suspension on 25th August, 2021. He completed three | months on 25th November, 2021. The applicant is, there- fore, entitled to enhancement in subsistence allowance from the date of 25th November, 2021.
14. OA No. 145/2023 is, therefore, allowed with no or- der as to costs. Respondents are directed to enhance the subsistence allowance in terms of FR 53 with effect from 25th November, 2021.
(Justice M.G.Sewlikar) Member (J) ink/acs