Central Administrative Tribunal - Delhi
M T J Chishti vs M/O Culture on 1 February, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No-2450/2013
Order Reserved on 21.07.2015
Order Pronounced on: 01.02.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. A.K. Bhardwaj, Member (J)
Shri M.T.J. Chishti
S/o Late J.A. Chishti,
425, Sector-A, Pocket C,
Vasant Kunj,
New Delhi-110070. -Applicant
(By Advocate: Ms. Rashmi Chopra)
Versus
1. Union of India
Through the Secretary,
Department of Culture,
Shastri Bhavan,
New Delhi-110011.
2. The Director General of Archives,
Government of India,
National Archive of India,
Janpath, New Delhi-110001. -Respondents
(By Advocate: Shri Subhash Gosain)
ORDER
Per Sudhir Kumar, Member (A):
The applicant of this OA is before this Tribunal with the following prayers:-
"(a) quash the order(s) dated 26.12.2012 and 30.05.2013 and direct the respondents to treat the period of illegal suspension as spent on duty;
(b) grant all consequential benefits including regular pay and all benefits like increment, allowances etc. interest date of his suspension i.e. 21.08.1997 as the delay was because of the deliberate intention of the office in order to systematically torture the applicant;2
OA No-2450/2013
(c) litigation cost may be awarded in favour of the applicant;
(d) pass such other or further order(s) as may be deemed fit and proper in facts and circumstances of the present case".
2. Since the facts of the case are very confusing otherwise, it would be appropriate if they are recounted seriatim. The applicant was appointed as Assistant Archivist in the National Archives of India on 20.06.1980. As a Government servant he was bound by the code of conduct as prescribed by the Rules and Regulations applicable to the Government servants. However, the paper book of this OA reveals that he did not follow this code of conduct by which he was bound as a Government servant.
3. The applicant's troubles started when a complaint was lodged by his third wife vide FIR No.123/96, with the Police Station Vasant Kunj on 12.03.1996, charging him with criminal assault. He was arrested by the police and released on bail the same day. His children from his first wife were already in U.S.A. by that time, along with his ex-wife. The applicant did not report the matter regarding the registration of the criminal case and his arrest to the respondent authorities. However, his third wife Smt. Reshma Tariq Chisti informed the department about the incident through a letter dated 26.03.1996. The records of the present OA do not disclose as to whether he had ever informed the respondent-authorities about his having divorced his second wife and having contracted a third marriage, and for that matter even his ever having divorced his first wife, who was by then in the U.S.A. 3 OA No-2450/2013
4. Faced with the prospects of criminal proceedings being pursued against him by his third wife, the applicant applied for leave to visit U.S.A. on 18.07.1996, citing the reason for seeking leave the illness of his son from his first wife, though giving a different reason also of his children's vacations in India. The Criminal Court, where his third wife's case was pending, by its order dated 19.07.1996, permitted the applicant to leave the country, but ordered him to be present in the Court on 28.10.1996. The applicant submitted a copy of this order of the Criminal Court to the respondent department on 23.07.1996, and sought permission through his letter dated 24.07.1996 to leave the country. On 24.07.1996, the applicant visited his office along with his mother, and remained in the office premises till 6.00.p.m., but after registering his application for leave with the General Diary, without the leave having been even processed for sanction, he left the country for U.S.A. on 25.07.1996, without any prior permission of the Head of Department, or getting his leave sanctioned by the Competent Authority.
5. Since the applicant had left the country without obtaining prior permission of the Competent Authority, and getting the leave sanctioned, he was issued a Memo dated 28.08.1996 by the respondents, directing him to report back for duty immediately, but he did not turn up at all.
6. The applicant's conduct in going abroad in an unauthorized manner, ill-treating his third wife, and not reporting back for duty when directed to do so through Memorandum dated 28.08.1996, ultimately prompted the Respondent-authorities to issue a Memorandum and 4 OA No-2450/2013 Articles of Charges to the applicant on 18.02.1997, through which disciplinary proceedings were initiated against him. The record, however, discloses that on 28.10.1996, he had presented himself before the Criminal Court.
7. These Articles of Charges were served upon the applicant, and he replied to the same through his representations dated 01.03.1997, 08.04.1997 and 17.04.1997. However, the disciplinary enquiry was conducted and completed, and the enquiry report was submitted by the Enquiry Officer in October 1997. But, before the report of the disciplinary enquiry could be submitted by the Enquiry Officer, the applicant had once again left the country on 17.07.1997, again without any permission to do so. He was then placed under suspension in August 1997.
8. His second unauthorised absence led to a second disciplinary enquiry being instituted against him, only on that ground and charge alone, and the second enquiry report was also submitted by the concerned Enquiry Officer in December 1999. The decision on the first enquiry report was also still pending, and, therefore, both the disciplinary enquiry reports, and the representation of the applicant against the second enquiry report, were also considered together by the Disciplinary Authority, and the penalty of removal from service was imposed upon the applicant on 18.02.2000. The applicant submitted an appeal. The Appellate Authority, the then Secretary (Culture), considered both the enquiry reports, and modified the penalty imposed upon the 5 OA No-2450/2013 applicant, of his removal from service, to compulsory retirement, through its order dated 22.07.2009.
9. By this time, the applicant had filed three OAs before this Tribunal. The first OA No.2089/2001 had been filed in February 2000 against the imposition of penalty upon him for his removal from service. Before this OA could be disposed of, the Appellate Authority had modified the penalty of removal from service to compulsory retirement. The applicant, therefore, filed his second OA No.3037/2002. This OA came to be decided earlier, and through order dated 22.10.2003, on the technical ground of the non-supply of a copy of the first enquiry report, this Tribunal partly allowed the second OA No.3037/2002. As a result, the applicant was reinstated, but simultaneously placed under deemed suspension in April 2004, ostensibly in compliance of the orders of this Tribunal dated 22.10.2003 in the applicant's second OA No.3037/2002.
10. He was then supplied with a copy of the first disciplinary enquiry report, and he gave his first representation dated 17.05.2004 against that enquiry report. The Disciplinary Authority also gave him a personal hearing on 25.10.2004. At this personal hearing, the points regarding the applicant having gone abroad twice, without his having obtained permission to do so, and having solemnised a third marriage long back on 19.12.1993, without informing the respondent-department, and also not informing about his arrest in a criminal case, were all confronted and confirmed. The order thereafter passed by the Disciplinary Authority has not been brought on record in the present OA.
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OA No-2450/2013
11. It, however, emerges from the record that the applicant then filed his third OA No.365/2008, against all the orders passed against him, and both the disciplinary enquiry reports etc. Without expressing any opinion on the merits of the disciplinary enquiry proceedings, through this Tribunal's order dated 10.11.2008, the applicant was ordered to be reinstated in service, with all consequential benefits, after noting that no review had been conducted on the deemed suspension, which had rendered the original order of his suspension as nullity in the eyes of law.
12. The respondent-department filed a Review Application No. 190/98 in December 2008, but the same was rejected by this Tribunal on 24.12.2008.
13. However, since in Para-6 of its order dated 10.11.2008 in OA No.365/2008, it was made clear that this Tribunal had not expressed any opinion on the merits of the disciplinary proceedings, therefore, after the above order in the O.A., the Disciplinary Authority, through its order dated 19.01.2009 (Annexure A-2 (colly), compulsorily retired the applicant with retrospective effect, w.e.f. 18.02.2000, which was the date when the applicant had been earlier dismissed from service.
14. The applicant then filed his appeal dated 05.02.2009 before the Appellate Authority, against that order of compulsory retirement dated 19.01.2009, and after considering all facts of the case, the Appellate Authority, through its order dated 22.07.2009, passed an order 7 OA No-2450/2013 compulsorily retiring the applicant from service w.e.f. 19.01.2009, correcting and modifying the punishment imposed by the Disciplinary Authority compulsorily retiring him w.e.f. 18.02.2000.
15. The applicant thereafter filed his fourth OA No.1208/2010, questioning the order of penalty and rejection of his appeal. That OA was dismissed as withdrawn on 18.11.2011. However, it was further observed by the Bench that the applicant will be entitled to make a representation for such benefits, which he may be entitled to, within a period of two weeks, and on receipt of the same, the respondents will take a decision thereupon within six weeks thereafter, and that for such reliefs, to which the applicant may be entitled to, and if the same may not be granted, it would be open to the applicant to file a fresh petition. With this order of this Tribunal, the Appellate Authority's order dated 22.07.2009, which had been challenged in the said OA No.1208/2010 (supra) became final.
16. However, instead of pursuing his remedies with the respondents effectively, as per the liberty granted to him through order dated 18.11.2011 in his fourth OA No.1208/2010, the applicant did not file any representation with the respondents, and, instead filed an MA No.1188/2012 by way of an Execution Petition, moved on 17.04.2012, for implementation of the order passed by this Tribunal dated 18.11.2011, in the first paragraph of that order, as reproduced above. It was submitted on behalf of the applicant in this M.A. that neither his subsistence allowance, nor any other allowances, had been paid to him. 8
OA No-2450/2013 The respondents submitted that the consultation process regarding the matter was not yet over, and the matter had been referred to the Department of Personnel & Training, which had raised certain queries in their letter dated 07.11.2012. However, on 08.11.2012, through an interim order passed in that M.A., by a Bench which included one of us, the respondents were granted time of three weeks to file a proper compliance report, and a cost of Rs.10,000/- was imposed, payable to the applicant.
17. Thereafter, the respondents first passed an order dated 14.12.2012, but, later, in supersession of that order, another Office Order was passed on 26.12.2012 (Annexure A-XIV), which has been impugned and sought to be quashed by the applicant in the present OA, and which stated as follows:-
"In supersession of Office Order of even number dated 14 December 2012 Shri M.T.J. Chishti, Ex-Assistant Archivist was under suspension w.e.f. 21 August 1997 to 19th January 2009. After considering the facts of the case and points made in the appeal and on the grounds brought up in his appeal, the Appellate Authority orders in exercise of the powers under Rule 2 of the CCS (CCA) Rules and Shri M.T.J. Chishti stands compulsorily retired from the service with effect from 19.01.2009 vide Order No. F.12-18/2000- A&A dated 22nd July 2009 of Secretary (Culture), Ministry of Culture, Government of India.
However, the period of suspension of Shri M.T.J. Chishti, Ex-Assistant Archivist, i.e., 22.08.1997 to 19.01.2009 will be treated as non-qualifying service as per Government instructions on the subject".
(Emphasis supplied).
18. It is seen that prima facie, these orders dated 14.12.2012, and later on dated 26.12.2012, were passed by the respondents in the process of complying with the earlier orders of this Tribunal, and after availing of 9 OA No-2450/2013 the time granted by this Tribunal through the interim orders dated 08.11.2012, referred to in para 18/above, so that a compliance report could be filed.
19. In the meanwhile, the applicant had also filed a Contempt Petition No.285/2013 in OA No.365/2008, in which the order dated 18.11.2011 in OA No.1208/2010 was at Annexure A-II, the Computation Sheet Office Order dated 02.03.2012 was at Annexure A-III, and its Corrigendum dated 21.03.2012 was at Page-15 of Annexure A-III, the Office order dated 02.12.2012 was at Annexure A-IV, the interim order dated 08.11.2012 passed in his MA No.1188/2012 (supra) was at Annexure A-V and the order dated 26.12.2012 impugned in the present proceedings was at Annexure A-VI of that CP. It was submitted by the present applicant, as the petitioner of that CP, as follows:-
"9. The respondents in utter violation of the order(s) of the Ld. Tribunal (supra), passed an order dated 26.12.2012 again seeking to decide the appeal of the applicant (already stood decided on 22.07.2009) treating the period of suspension of the applicant from 21.08.1997 to 19.01.2009 as non qualifying service as per Govt. Instructions on the subject.
A copy of the order dated 26.12.2012 in annexed herewith and marked as Annexure A-VI.
10. That the respondents have deliberately intentionally, wilfully committed contempt of the order(s) of the Ld. Tribunal dated 10.11.2008 and 18.11.2011.
11. That the respondents committed contempt by not reinstating the applicant in service as directed by the Ld. Tribunal vide its order dated 10.11.2008, further when respondent assured to implement the order dated 10.11.2008 before the court on 18.11.2011 and further by passing orders dated 02.07.2012 and 26.12.2012 treating the period of illegal suspension as non qualifying service despite order(s) of the Ld. Tribunal and continue to commit contempt by deliberating continuing to flout the order(s) of the Ld. Tribunal.
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OA No-2450/2013
12. It is therefore humbly submitted that the contempt proceedings be initiated against the respondents for violating the orders passed by the Ld. Tribunal.
Prayer In view of the submissions made above it is most respectfully prayed that your Lordship may graciously be pleased to:
i) Initiate contempt proceedings against the respondents for violating of the order dated 10.11.2008 by passing order(s) dated 02.07.2012 & 26.12.2012 and further direct the respondents to implement the order within 15 working days to the extent of consequential benefits as entitled to under law.
ii) Pass any other/further orders which this Ld. Tribunal deems fit and proper in the circumstances of the case".
20. The Contempt Petition No.285/2013 in OA No. 365/2008 was argued before a Bench which included one of us, and came to be disposed of on 20.05.2013 with the following orders:-
"After arguing for a while, the learned counsel for the petitioner seeks to withdraw this Petition with liberty to initiate appropriate proceedings before concerned forum of competent jurisdiction in accordance with law.
2. The Contempt Petition is dismissed as withdrawn with liberty as prayed for".
21. In this manner, we have before us the previous history of the applicant's case as follows, and we are bound by all these orders:-
"1) First O.A. No. 2089/2011 -> Decided on 13.09.2002
2) Second O.A. No.3037/2002 -> Decided on 22.10.2003
3) Third O.A. No.365/2008 -> Decided on 10.11.2008
4) Respondents' R.A.No.190/2008 -> Decided on 24.12.2008
5) Fourth O.A. No.1208/2010 -> withdrawn on 18.11.2011
6) Execution Petition M.A.No.1188/2012-> Dismissed on 31.05.2013
7) Contempt Petition No.85/2013 in OA No.365/2008
-> 20.05.2013
8) M.A. No.147/2013 -> Disposed off on 31.05.2013".11
OA No-2450/2013
22. In the order dated 22.10.2003 in OA No.3037/2002, the Bench that day had permitted the disciplinary enquiry proceedings to be completed, and, in para 16 of that order, it was further laid down that the period for which the applicant had remained out of service shall be decided after the culmination of the D.E. proceedings. The respondents passed an order dated 15.04.2004, ordering for the applicant deemed to have been suspended w.e.f. the date of his unauthorised absence. The said order was quashed by this Tribunal in its order dated 10.11.2008 passed in OA no. 365/2008, and the review filed against the same in R.A. No.190/2008 was also rejected. But the Bench on 10.11.2008 could not have, and did not, change the contours of the earlier order dated 22.10.2003 of a Coordinate Bench, the presiding Member of both of which Benches, who had dictated both those Oral orders, dated 22.10.2003, and dated 10.11.2008, was the same Judicial Member.
23. Now, the case of the applicant is that at the strength of said orders subsequently passed by the Tribunal in OA 365/2008 and RA 190/2008, the applicant has to be deemed in service from 18.02.2000 to 19.01.2009, while the respondents have specifically directed in the impugned order dated 26.12.2012 for the entire period of his suspension from 22.08.1997 to 19.01.2009 to be treated as non-qualifying service, as per Government instructions on the subject (Annexure R-1).
24. It is not as if the Respondents have not obeyed the orders of the Tribunal regarding payment of the applicant's Subsistence Allowance 12 OA No-2450/2013 after properly computing his salary. Through Annexure R-2 dated 30.05.2013, the respondents have brought on record the details of all the payments made to the applicant, including arrears on account of revised pay and other allowances. In this, the case of the respondents is only that before implementation of the order in O.A. No.365/2008 dated 10.11.2008, the Competent Authority had come out with a decision dated 19.01.2009, compulsorily retiring the applicant, and which was challenged by the applicant in OA No.1208/2010.
25. But, in the instant case, the applicant has tried to again re-open many of the points which have already been since settled through so many rounds of previous litigation, as already enumerated above. He has in Para-4.4 submitted that permission had been granted to him to leave the country by the Director General on 11.07.1997, which is not concerned with the present case. In Para 4.12 of his OA the applicant has stated that the Disciplinary Authority had decided about the punishment on the basis of the enquiry report, without either hearing him in person, or saying anything about the unprecedented delay. We find that since the Enquiry Report dated 21.12.1999 was served upon the applicant after the orders of this Tribunal passed in one of his earlier OAs, and the applicant had been allowed to represent against that enquiry report, which he did, and the Rules do not require to the Disciplinary Authority to thereafter give an oral hearing also to the delinquent Government official before imposing the penalty. Therefore, 13 OA No-2450/2013 the applicant cannot be allowed to assail the order as passed on this ground.
26. In any case, he had filed an appeal against the order of the Disciplinary Authority, and the Appellate Authority passed the order dated 22.07.2009 running into nearly 11 pages, after considering all the points, and, therefore, the applicant before us cannot also be allowed to state that his pleas against the orders of the Disciplinary Authority dated 19.01.2009 were not considered by the Appellate Authority at all.
27. In Para 4.15 of the OA he has submitted that he had withdrawn his OA No.1208/2010 only on the assurance of the respondents, but we find that no such specific assurance given by the respondents had been recorded by the Bench presided by the then Hon'ble Chairman, CAT, in its order dated 18.11.2011, while permitting the OA to be dismissed as withdrawn, in which the other Member of the Bench was the same who was in the Bench that had disposed off his O.A. No.365/2008 on 10.11.2008.
28. In Para 4.22, the applicant has submitted that this Tribunal had in its interim order dated 08.11.2012 in his M.A. for Execution expressed its anguish that the attitude of the respondents had actually been one of contempt. But we have to note that the interim orders that day were passed in an MA for Execution, and that M.A. was later dismissed on 31.05. 2013 by a Bench chaired by Hon'ble Chairman CAT, by passing the following orders:-
14
OA No-2450/2013 "By means of this Miscellaneous Application, the applicant has sought execution of the order of this Tribunal dated 18.11.2011 passed in OA No.1208/2010. It appears that the aforesaid OA was disposed of with the direction that the applicant if makes representation in respect of such benefits which he may be entitled to the same may be disposed of within six weeks and in the event such reliefs are not granted, liberty was given to the applicant to file fresh Original Application. When the MA was heard on 13.05.2013 by this Bench, on the request made by the learned counsel for the respondents, one more opportunity was given to the respondents to take decision on the applicant's representation in the light of the order of the Tribunal dated 18.11.2011 passed in OA No.1208/2010.
When the matter is taken up today, Shri H.K. Gangwani, learned counsel for the respondents, states that the aforesaid order of the Tribunal has fully been implemented as the representation of the applicant has been disposed of by a reasoned order. He has also produced a photo copy of the order of Dy. Director of Archives, Government of India dated 30.05.2013, whereby the applicant's claim of benefits had been disposed of by recording reasons. A copy of the order has also been given to the learned counsel for the applicant. Therefore, in view of the fact that the representation of the applicant has now been disposed of, we are of the view that no further order is required to be passed in this proceeding. However, learned counsel for the applicant submits that since the order passed on the representation addressed to the applicant has not been given to him, therefore, liberty may be given to him, if not satisfied with the order, to assail the same in appropriate proceeding. The Miscellaneous Application is, therefore, dismissed with liberty to the applicant to challenge the order dated 30.05.2013, if aggrieved, in appropriate proceeding".
(Emphasis supplied)
29. It is seen that the Bench presided by Chairman, CAT, had recorded that the representation of the applicant has been disposed of, and no further order is required to be passed in MA No.147/2013 with MA No.1188/2012 in the said OA No.1208/2010. The Bench had that day granted liberty to the applicant to challenge the Respondents' order dated 15 OA No-2450/2013 30.05.2013, which he has now done by filing the present OA. Therefore, it is clear that as on 31.05.2013, nothing which had been ordered previously by any Coordinate Bench had survived. This order dated 30.05.2013 (Annexure R-2), assailed by the applicant through this OA, along with the Appellate Authority's earlier order dated 26.12.2012 (Annexure A-V), had stated as follows:-
" Shri M.T.J. Chisti 425, Sector A, Pocket C Vasant Kunj, New Delhi-110 070.
Sir, I am to refer to your representation dated 02/12/2011 and to inform you the following for your information.
1. That the salary for the period from 01.07.1996 to 21.08.1997 has been paid to you.
2. That you were never reinstated because before the implementation of order O.A. No. 365/2008 dated 10/11/2008, the competent authority came with a decision of compulsory retirement on 19/01/2009.
And against the same decision of Competent Authority, an OA No. 1208/2010 was filed by you, which was ultimately withdrawn on 18/11/2011.
In view of the order, the dues demanded against the reinstatement are not admissible. Whereas the arrear on account of revised Pay and other Allowances, as admissible, has been paid.
3. Arrear of Subsistence Allowance was paid as per the pay fixation order on the basis of VI Pay Commission.
4. The total admissible amount of D.C.R.G. is Rs. 1,64,138/- out of which an amount of the 1,47,724/- has been paid on 23.01.2013 (while the remaining 10% has been prepared and will be paid by the end of this month.
The pension for the period from 20.01.2009 to 31.12.2012 amounting Rs. 6,05,455/- has been paid to you, by e- payment on 28.03.2013.16
OA No-2450/2013
5. Other benefit- Leave salary amount of Rs. 48,359/- has been paid to you by e-payment on 08/02/2013.
G.P.F. and Group Insurance will be paid on submission of prescribed application forms which sent to you by post by this department to your residence address. (Proforma is enclosed again)
6. Travelling allowance incurred on the enquiries conducted during suspension period. Claim may be submitted to the proper form and will be paid after verification and the rates applicable at that time subject to approval of Director General of Archives.
7. The salary has been paid to you for the period from 01.07.1996 to 2009.
Sd/ ( M.A. Haque) Dy. Director of Archives Government of India"
(Emphasis supplied)
30. We may note here that in filing the present OA, the applicant has taken the following grounds:-
i) That the order in his third OA 365/2008 dated 10.11.2008 had become final because even the RA filed by the respondents against it had been rejected, and no appeal or writ had been filed by the respondents, and
ii) Because the two impugned orders dated 26.12.2012 and 30.05.2013 are illegal inasmuch as they try to overreach the decision of this Tribunal, and
iii) Because he has been deemed to be in regular service since 1997, and the order dated 30.05.2013 was perverse as it violates the order of this Tribunal dated 10.11.2008 in his third OA No.365/2008, and 17 OA No-2450/2013
iv) Because not implementing the order dated 10.11.2008, and passing the order compulsorily retiring him, is malafide and vindictive, and
v) Because the treatment of period of suspension and punishment of compulsorily retirement are two different aspects and cannot be said to be interdependent on each other, and
vi) Because records of the case would reveal the mental harassment and torture caused to the applicant who had to time and again approach the Tribunal and has been financially harassed despite the order of this Tribunal in his favour, and
vii) Because in the order dated 08.11.2012 (supra) in MA this Tribunal had observed that the attitude of the respondents had actually been that of contempt, and
viii) Because the period of suspension antedated the period of compulsory retirement, and, therefore, the period of suspension stood automatically regularized due to non-
revocation of suspension, and
ix) Because the order dated 26.12.2012 is wrong inasmuch as the respondents have in this case decided his suspension period, which was no longer res-integra, having achieved finality by virtue of the orders of this Tribunal dated 10.11.2008 in his third OA No.365/2008.
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31. On the other hand, the respondents have sought shelter behind their submissions that the present OA is barred by res judicata, and is, therefore, liable to be dismissed, and that the present OA is also without any fresh cause of action having accrued to the applicant, because of which also it is liable to be dismissed. They have further sought shelter behind the standing instructions (Page 71 of the Paper-book, Annexure R-3, from Swamy's Handbook-2011) that if suspension is followed by imposition of a major penalty, and the reinstating authority does not order that it shall count as qualifying service, the period of suspension cannot count as qualifying service. They have also submitted that the applicant has withheld relevant facts with regard to his misconduct during service, and during the period of his suspension, and he has never produced his passport during the entire enquiry proceedings conducted against him.
32. It was further submitted that the applicant had been placed under suspension w.e.f. 21.08.1997, but due to his continued unauthorized absence, the suspension order could never be revoked till the date of his compulsory retirement on 19.01.2009, and, therefore, as per the applicable Rules, the period of his suspension cannot be treated as qualifying service, as the period had been a totally non-working period, and as there had been no instance of the applicant even making an attempt for rejoining/resuming his duties. It was submitted that all the final claims of the applicant have been settled, and it was denied that the applicant is entitled to any other relief, and the respondents have violated any Rule, Law or rights of the applicant in any manner whatsoever. It 19 OA No-2450/2013 was, therefore, prayed that the OA deserves to be dismissed in the interests of justice.
33. In his rejoinder, the applicant had more or less reiterated his submissions as made out in the OA, and had made a further submission that he had not been released his full pay and other legal benefits, since he had not been paid salary in Pay Band Scale 2 + Grade Pay of Rs.4600/-, along with HRA and DA, which is revised every six months as per inflation, and that he was also entitled to an increment every year, and a promotion under ACP, which would have brought him under Pay Band Scale-3, and that he should also be given CGHS Card, and be allowed to access the healthcare benefits all Government employees are provided. He had also reproduced, and sought shelter behind, this Tribunal's order dated 31.05.2013 (supra) passed in his MAs No.1188/2012 with 147/2013. His contention was that this O.A. is not barred by res-judicata, and this O.A. has been filed on account of deprivation of his legal rights, which were substantiated by the liberty granted to him by this Tribunal on 31.05.2013. He had, thereafter, repeated all the previous facts, as already discussed by us in detail above.
34. Heard. We have given our anxious consideration to the facts of the case. The first prayer of the applicant in this O.A. relates to quashing of the orders dated 26.12.2012 and 30.05.2013, and seeks directions upon the respondents to treat the period of his suspension as period spent on duty. It must be emphasized here that in the present O.A. the applicant has not at all laid a challenge to his having been kept by the respondents 20 OA No-2450/2013 under suspension from 21.08.1997 onwards. His prayers 8 (a) and 8 (b) are both confined to the period of his continued suspension from 21.08.1997 to be treated as period spent on duty, and for grant of all consequential monetary and administrative benefits.
35. When a Government servant who is under suspension is reinstated, or retires on superannuation, or premature retirement, the authority competent to order reinstatement from such suspension should consider and make a specific order regarding the pay and allowances to be paid to the Government servant for the period of suspension, ending with his reinstatement, or the date of his retirement, including premature retirement. Also, the payment of sumptuary allowance for the period of such suspension, and the decision regarding treating that period of suspension as duty or not, are two independent issues.
36. In the instant case, the respondents have through impugned order specifically directed that the period of the applicant's continued suspension from 21.08.1997 to 19.01.2009 to be treated as non- qualifying service. Thus, it is clear that the respondents have not linked the issues of treatment of the period of suspension with the aspect of payment of salary, or subsistence allowance. And, in the present O.A., the applicant has also differentiated appropriately, and while he has not laid a challenge to his continued suspension from 21.08.1997 to 19.01.2009, but has only challenged that period to have been treated as a period not spent on duty. It is trite law that it is not for the Courts and Tribunals to place themselves in the shoes of the concerned Disciplinary 21 OA No-2450/2013 Authorities to take administrative decisions of the kind which can be taken only by the applicant's Disciplinary and Appellate Authorities concerned. This Tribunal can only sit in a judicial review of a decision if the procedure followed in arriving at the decision is erroneous and not in accordance with law. We do not find either the procedure adopted by the respondents to be at variance with the law, or the decision arrived at to be palpably erroneous.
37. It is seen that in terms of the order dated 30.05.2013, reproduced by us in full above, the applicant has been paid Subsistence Allowance for the period of his suspension as per the pay fixation order on the basis of the VI Pay Commission. He has also been paid the total admissible amount of D.C.R.G. He has also been paid pension for the period from 20.01.2009 to 31.12.2012. He has also been paid Leave salary amount, and he has been asked to submit the prescribed application forms for claiming his G.P.F. and Group Insurance. He has also been permitted to submit his claim in the proper format for Travelling Allowance incurred on the enquiries conducted during the period of his suspension.
38. Because the applicant has never worked even for a single day after 21.08.1997, obviously there has been no continuity in the applicant's service, as he had never re-joined his service at all, even when he could do so. It is, therefore, no wonder that the applicant's case could not be considered by the respondents for granting ACP/MACP financial upgradations, which are granted based only upon actual service rendered. Regarding CGHS Card, the applicant has not brought on 22 OA No-2450/2013 record that the required amount to be paid for the purpose of issuance of a retired personnel CGHS Card has been paid by him. However, he had reiterated his prayer that the OA be allowed and his dues may be paid to him after correcting the pay scales to be released to him.
39. As regards the grounds taken by the applicant in filing the present OA, his main ground is that this Tribunal's orders in his 3rd OA No. 365/2008 dated 10.11.2008 had become final, because even the RA filed by the respondents against it had been rejected, and no appeal or writ had been filed by the respondents. There can be no dispute with this submission, but subsequent events overtook its implementation.
40. Before this Tribunal's orders in O.A. No.365/2008 could be implemented, after the rejection of the R.A. No.190/2008 on 24.12.2008, the Competent Authority had passed a fresh order, in the form of the order passed on 19.01.2009, which was within the ambit of the liberty granted to the respondents by this Tribunal only, in terms of Para 16 of the order dated 22.10.2003 passed in the applicant's second OA No.3037/2002.
41. Also, in the order dated 10.11.2008 in OA No. 365/2008, in regard to the grievance of the applicant for non-payment of his salary after his suspension on 21.08.1997, the only direction that had been issued by the Coordinate Bench of the Tribunal that day was that this grievance of the applicant shall be examined by the respondents, and the withheld salary of the applicant, which is not on account of any suspension, shall also be released, as per the law and instructions on the subject, 23 OA No-2450/2013 within the period of two months from the date of receipt of a copy of that order, as mentioned in Para-5 of that order. There were no specific directions in regard to the payment of full salary even during the period of his suspension, which could not have been the order under law in any case, since a Government servant under suspension is only entitled to subsistence allowance, and not salary.
42. But, the fact remained that when, after the Respondents' order dated 15.04.2004 having been set aside, his services were to be restored, with or without being continued on suspension, the order dated 19.01.2009 of his Compulsory Retirement intervened. Therefore, even though the applicant was ordered to be allowed to be paid emoluments for the period of his suspension w.e.f. 21.08.1997 to 19.01.2009, since there is no linkage between the payment of salary and allowances for the period of absence or suspension etc., and the treatment of such periods of absence from duty, or suspension etc., therefore, when the applicant has been paid all of his monetary dues for that period, this Tribunal cannot at all interfere with the discretion of the Disciplinary Authority to still treat that period from 22.08.1997 to 19.01.2009 as non-qualifying service.
43. Mere entitlement to salary, or emoluments as admissible, by virtue of operation of Tribunal's/Court's orders, does not mean that the applicant was actually working against the post, and that the period of his suspension and/or absence from duty had to be necessarily treated as having been spent on duty also, just because salary or emoluments and allowances had been paid by virtue of judicial orders. 24
OA No-2450/2013
44. In the instant case, while we are bound to follow all the orders of all the Coordinate Benches. We are necessarily bound to follow every single final order passed by a Coordinate Bench, but not any Interim/Daily Order Sheet orders, or only one order passed in the applicant's 3rd OA No.365/2008. We are actually equally bound by all the orders passed by all Coordinate Benches, in the applicant's 4th OA No. 1208/2010, and the MAs filed therein, and we cannot over reach or re-write any of those final orders. In the said OA No.1208/2010, while an order had been passed in MA No. 1188/2012 with MA No.147/2013 on 31.05.2013, that order in MA could also not have changed the character of the original orders passed by other Coordinate Benches.
45. It is seen that it is actually the applicant himself who was at fault, as he did not make any representation for such benefits which he may be entitled to within a period of two weeks of receipt of a copy of the order dated 18.10.2011, in which the respondents had been directed to take a decision within six weeks thereafter. He instead chose to file the MA for Execution, in which the above cited order dated 31.05.2013 (supra), had come to be passed. Only after availing the liberty given that day on 31.05.2013, the applicant has now filed present 5th OA of his.
46. Therefore, the applicant cannot be allowed to take the ground that the two impugned orders dated 26.12.2012 and 30.05.2013 are illegal inasmuch as they have tried to over-reach the decision of the Tribunal, as the Tribunal had never directed in any of its orders, in his four OAs, and the one C.P., and numerous MAs, for the period of applicant's suspension 25 OA No-2450/2013 and absence from duty to be necessarily treated in a particular manner. In fact, as per para 16 of the Tribunal's order dated 22.10.2003 (supra), that aspect was specifically left to be decided by the Disciplinary Authority, after conclusion of the disciplinary enquiry proceedings.
47. The third ground taken by the applicant that he should be deemed to be in regular service since 1997, and that the order dated 30.05.2013 was perverse as it violates the order of this Tribunal dated 10.11.2008 in his 3rd OA No. 365/2008, cannot also be accepted, because the applicant himself had moved MA No.1188/2012 and MA No.147/2013, much after withdrawing his 4th OA No.1208/2010, in which, while disposing of those two MAs on 31.05.2013, this Tribunal had taken cognizance of the orders passed on 30.05.2013, after recording reasons.
48. This Bench cannot also now today substitute its own judgment to the conclusion arrived at by a Coordinate Bench on 31.05.2013, taking cognizance of the order passed by the respondents the previous day, dated 30.05.2013, and granting liberty to the applicant to challenge the same, which he has done by him through the present O.A.
49. Once again, in view of the order dated 20.05.2013, passed in C.P. No. 285/2013, by a Coordinate Bench, including one of us, the applicant cannot also be allowed to rake up the issue of respondents not having implemented the Tribunal's earlier order dated 10.11.2008, passed in his 3rd OA No.365/2008, since in that C.P. he had not been able to point out any contumacious act that day, and also since many developments have 26 OA No-2450/2013 taken place thereafter in his 4th OA No.1208/2010, and in the order dated 31.05.2013 passed on his MA No. 1188/2012 with MA No.147/2013 for Execution of the order in OA No.1208/2010.
50. We have already dealt with the ground taken by the applicant that the treatment of period of suspension and punishment of compulsorily retirement are two different aspects and cannot be said to be interdependent on each other in the preceding paragraphs.
51. We are also clear in our minds that the applicant has not come before this Tribunal with clean hands in the present O.A., as was the case earlier also perhaps. The applicant has never been able to deny the averment of the respondents that he had contracted a third marriage in the year 1993, even while his second wife was alive. The applicant has also not been able to deny that he had tried to seek shelter behind the plea of Muslim Personal Law being applicable to him, but that liberty, and applicability of Muslim Personal Law, is not available in the case of Government servants covered under CCS (Conduct) Rules, who cannot enter into bigamy. The applicant has also not been able to explain as to how and why he could leave the country without prior permission at least on two occasions, on 25.07.1996, and then on 17.07.1997. He had also not informed his superiors in the Respondent-department about his arrest. It was only his third wife who had informed the Respondent- department regarding his arrest, through her letter dated 12.03.1996. He has also never produced a copy of his Passport to be able to prove that he was at least within the country during the entire length of the 27 OA No-2450/2013 period from 21.08.1977 to 19.01.2009, for which he has drawn Subsistence Allowance & other emoluments in full.
52. Therefore, the applicant cannot be allowed to raise the contention that the respondents have, due to any of their actions, caused him any mental harassment and torture, while it is his own numerous misdemeanours, which have brought misery upon the applicant.
53. The applicant has further sought shelter again and again behind the order passed in OA No.365/2008, while overlooking the fact that the last order concerning his case was passed by this Tribunal in the two MAs filed in his 4th OA No.1208/2010 on 31.05.2013, in which liberty had been granted to him to challenge the order passed by the respondents on 30.05.2013, which he has done through filing this 5th OA. Therefore, the applicant cannot now be allowed to state that the impugned orders dated 19.01.2009 & 22.07.2009, passed by his Disciplinary & Appellate Authorities, were without jurisdiction. In any case, he has not laid a challenge to those orders, dated 19.01.2009 and 22.07.2009, in the present OA.
54. He has only laid a challenge to the consequential orders passed on 26.12.2012 and 30.05.2013. Those source orders dated 19.01.2009 and 22.07.2009 were actually not challenged by the applicant even in his 4th OA No.1208/2010, and in that O.A. also, only the Enquiry Officer's reports dated 22.12.1999, 17.10.1997, 21.08.1997, 19.01.2000, 22.07.2009 and 11.08.2009 were sought to be quashed. But, quashing 28 OA No-2450/2013 of the orders passed by the Disciplinary Authority on 19.01.2009, and by the Appellate Authority on 22.07.2009, had never been sought, and in that OA No.1208/2010, the prayers were worded as follows:-
"(a) call for the records of the case and declare that the applicant to be deemed to have been reinstated into service with retrospective effect with all consequential benefits of pay, allowances etc.
(b) release the salary/other consequential amounts.
(c) to quash the Enquiry Officer reports dated 21.12.1999 & 17.10.1997.
(d) to quash the Enquiry Officer reports dated 21.08.1997 & 19.01.2000.
(e) to quash the Enquiry Officer reports dated 22.07.2009 & 11.08.2009.
(f) grant all consequential benefit to the applicant which he is entitled in law and pass such other or further order(s) as may be deemed fit and proper in facts and circumstances of the present case".
55. It is settled law that without laying a challenge to the source orders, only the consequential orders cannot be assailed. The applicant has failed to challenge the source orders of the Disciplinary Authority dated 19.01.2009, and of the Appellate Authority dated 22.07.2009, either in his earlier 4th OA No.1208/2010, which was dismissed as withdrawn, or in the present 5th OA, even after liberty had been specifically granted to him to do so, by a Coordinate Bench including one of us, while disposing of his Contempt Petition No.285/2013 in OA No.365/2008 on 20.05.2013 (supra), and allowing that C.P. to be withdrawn.
29
OA No-2450/2013
56. Since we find that the two impugned orders dated 26.12.2012 and 30.05.2013, impugned in the present OA, have flowed directly from the source order passed by the Appellate Authority on 22.07.2009, which the applicant has not challenged, the OA as presently filed cannot succeed.
57. We, therefore, find nothing wrong with the orders dated 26.12.2012 and 13.05.2013, as have been passed by the respondents, in pursuance of the source order passed by the Appellate Authority of the applicant on 22.07.2009, which the applicant has failed to lay a challenge to.
58. The OA is, therefore, dismissed, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar)
Member (J) Member (A)
cc.
30
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59. In terms of order No. F.No.16-3/2001-Estt.1 dated 15.04.2004, Director General of Archives (I/c), Government of India directed reistatement of the applicant to the post of Assistant Archivist in the National Archives of India w.e.f. 18.2.2000 in compliance of the directions issued by this Tribunal in OA No.3037/2002 dated 22.10.2003. Nevertheless, the authority further directed that the order of suspension issued vide No.F.4.No-1/96-Vig.dated 21.08.1997 was not revoked and the applicant was to continue to remain under suspension from the date of re-instatment in service till the final order could be passed. The order read thus:-
"ORDER In supersession of the appellate authority Orders No.F.18- 12/2000-A&A dated 18/6/2002 & disciplinary authority Order No.F.4-1/96-Vig.dated 18/2/2000, Shri M.T.J.Chishti is reinstated to the post of Assistant Archivist in the National Archives of India w.e.f. 18.2.2000 in compliance of the directions of the Hon'ble C.A.T., Principal Bench, New Delhi in OA No.3037/2002 dated 22.10.2003. However, the orders of the suspension issued vide No.F.4-1/96-Vig.dated 21 August 1997 are not revoked and he will continue to remain under suspension from the date of re- instatement of his service till the final order is passed by the disciplinary authority in terms of sub-rule (4) of rule 10 of CCS (CCA) Rules, 1965. He is entitled to subsistence allowance for the period of suspension as per rules.
As per the direction of the C.A.T., Principal Bench, New Delhi, a copy of the enquiry report submitted by Inquiry Officer dated 17.10.1997 in respect of Article of Charges framed against him under Rule 14 of the CCS (CCA) Rule 1965 issued vide this Department Memorandum No.F.4-1/96-vig.dated 18.2.1997 is enclosed. If Shri Chishti wishes to make any representation or submission to the disciplinary authority, he may do so in writing within 15 days from the date of receipt of this order." 31
OA No-2450/2013 60 The order was challenged before this Tribunal in OA No.365/2008 decided in terms of order dated 10.11.2008. Para 4 to 6 of the order read thus:-
"4. In the light of above, applicant, who was suspended on account of contemplated proceeding, on 21.8.1997 in pursuance of decision of the Tribunal when the penaly has been set aside was deemed as suspended by an order issued on 15.4.2004. What we find that even after responding to the inquiry report on 12.10.2004, no final decision has been arrived at in the inquiry proceeding. It is also clear that no review has been done in case of deemed suspension of the applicant, which is non-compliance of Rule 10(6) and (7) of the Rules, which renders the original side of the suspension as nullity in law.
5. In the applicant OA is allowed to the extent that the order dated 15.4.2004 is set aside. Applicant be reinstated in service with all consequential benefits within a period of two months from the date of receipt of a copy of this order.
6. As regards prayer 8(c), the period is interior to the date of suspension i.e. 21.8.1997 where the grievance of the applicant is that he has not been paid his salary. The aforesaid shall be examined by the respondents and withheld salary of applicant, which is not on account of any suspension shall also be released as per law and instructions on the subject within the aforesaid period. It is made clear that we have not expressed any opinion on the merit of the disciplinary proceedings. No costs."
61. The ramification of the aforementioned order passed by the Tribunal was that the applicant had to be reinstated in service from 18.02.2000. Indubitably, the RA No.190/2008 filed by the respondents seeking review of the order passed in OA 365/2008 was rejected. The order passed in RA read thus:-
"This RA is directed against an order passed by this Tribunal on 10.11.2008. Review has been filed raising that certain facts were not considered by the Tribunal, which is not correct, as the facts had been duly considered and a well conscious decision supported by law had been rendered.32
OA No-2450/2013
2. In the above view of the matter, an attempt to re-agitate the issue has been made, which is not within the ambit and scope of Section 22 (3) (f) of Administrative Tribunals Act, 1985. RA is accordingly dismissed in circulation in the light of the decision of Apex Court in State of West Bengal v. Kamal Sen Gupta, 2008 (9) SCALE 509."
Thereafter, in terms of the order No.F.No.18-1/2009-A&A dated 19.01.2009, the disciplinary authority inflicted upon the applicant, the punishment of compulsorily retirement from service w.e.f. 18.02.2000. The applicant preferred an appeal against said order under Section 21 (11) of CCS (CCA) Rules, 1965. The appeal was rejected in terms of order no.12-18/2000 A&A dated 22.07.2009. In the wake, the applicant again approached this Tribunal vide OA no.1208/2010 questioning the order of penalty and rejection of appeal. Nevertheless on 18.11.2011, the OA was dismissed as withdrawn. In the wake the order of disciplinary authority dated 19.01.2009 had attained finality. Relevant excerpts of the order passed by the Tribunal permitting the applicant to withdraw the OA read thus:-
"Ms. Rashmi Chopra, on instructions received by the applicant, states that this Original Application may be dismissed as withdrawn as applicant is unable to pursue this case because of ill health of his mother. She further submits that even if this petition is dismissed, some benefits accrue to the applicant, which the respondents should look into. Learned counsel for the respondents submits that whatever benefits applicant may be entitled to, the same will be considered and others passed thereon.
2. In view of the statement made by Ms. Rashmi Chopra, this Original Application is dismissed as withdrawn. Howeer, applicant will be entitled to make representation for such benefits which he may be entitled to within a period of two weeks and on receipt of the same, the respondents will take a decision thereon within six weeks thereafter. For such reliefs to which the applicant may be entitled to and if the same may not granted, it would be open to the applicant to file fresh petition."33
OA No-2450/2013 Since the intervening period of service of the applicant had not been decided, he had to approach this Tribunal again by filing certain Miscelleous Applications in OA 1208/2010. Nevertheless, since the representation made by the applicant had already been decided, the OA was disposed of. As can be seen from the office order no F.No.A-17(4)1/2011-Estt.1 dated 26.12.2012, the applicant was compulsorily retired from service w.e.f. 19.01.2009. The order read thus:-
"In supersession of Office Order of even number dated 14 December 2012. Shri M.T.J.Chishti, Ex-Assistant Archivist was under suspension w.e.f. 21 August 1997 to 19 January 2009. After considering the facts of the case and points made in the appeal and on the grounds brought up in his appeal, the Appellate Authority orders in exercise of the powers under Rule 2 of the CCS (CCA) Rules and Shri M.T.J.Chishti stands compulsorily retired from the service with effect from 19.01.2009 vide Order No.F.12-18/2000- A&A dated 22nd July 2009 of Secretary (Culture), Ministry of Culture, Government of India.
However, the period of suspension of Shri M.T.J.Chisti, Ex- Assistant Archivist i.e. 21.08.1997 to 19.01.2009 will be treated as non-qualifying service as per Government instructions on the subject."
62. The short controversy arise to be determined in the present OA is that how in what manner the period of service of the applicant from 21.08.1997 to 19.01.2009 should be decided. Ex-facie, in terms of order dated 15.04.2004 (ibid), the applicant was directed to be reinstated in service w.e.f. 18.02.2000 but was not actually reinstated. The said order was quashed by this Tribunal in OA no. 365/2008 and the review against the same was rejected. Thus, at the strength of said orders passed by the Tribunal in OA 365/2008 and RA 190/2008, the applicant has to be deemed in service from 18.02.2000 to 19.01.2009. In view of the law declared by Hon'ble Supreme Court in 34 OA No-2450/2013 SI Roop Lal and Anr. Vs. Lt. Governor through Chief, Delhi and Ors (2000) 1 SCC 644), it is not open to this Division Bench to take any view contrary to the one taken by the Division Bench in said proceedings. Relevant excerpts of the judgment read thus:-
"12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuivandas Purshottamdas Thakur v. Ratilal Motilal Patel, (1968) 1 SCR 455 : (AIR 1968 SC 372) while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus :-
"The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai's case (1962 (3) Guj LR 529) and of Macleod, C.J., in Haridas's case (AIR 1922 Bom 149) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C. J. observed in Lala Bhagwan v. Ram Chand.35
OA No-2450/2013 "It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re- considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
As far as the period from 21.08.1997 to 18.02.2000 is concerned, apparently in terms of the aforementioned order passed by the Tribunal in OA no. 365/2008, the order dated 21.08.1997 was not interfered with. As per rule i.e. FR 54-B (1) when a Government servant who is under suspension is reinstated, the authority competent to order reinstatement should consider and make specific order 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). The FR 54 read thus:-
"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 specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with re-instatement 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 spent on duty."
In terms of FR 54-B (5) before taking a decision regarding the treatment of intervening period, the employee needs to be given a show cause notice to enable him to put forth his stand by way of a 36 OA No-2450/2013 representation before the competent authority. FR 54-B (5) read thus:-
"(5) In cases other than those falling under sub-rules (2) and (3) the Government servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the full pay and allowances] to which he would have been entitled had he not been suspended, 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."
The pay and allowances for the period of absence and the treatment of such absence as duty are two independent issues and the decision regarding pay and allowances does not depend upon the treatment of absence period. The G.I. M.F.O.M.No 15(14) E.IV (59) dated the 25th May, 1962 and the 9th August, 1962 read thus:-
"(3) Treatment of period of absence and payment thereof.- The Government of India have conveyed the following clarifications in regard to certain points which have been raised in connection with the application of FR 54,54-A and 54-B:-
(i) The decision of the competent authority under F.R. 54, 54-A and 54-B is in respect of two separate and independent matters, viz., (a) pay and allowances for the period of absence, and (b) whether or not the period of absence should be treated as duty.
It is not necessary that the decision on (a) above should depend upon the decision on (b) above.
The competent authority has the discretion to pay the proportionate pay and allowances and treat the period as duty for any specified purpose(s) or only to pay the proportionate pay and allowances. It has no discretion to pay full pay and allowances when the period is treated as "non-duty".
If no order is passed directing that the period of absence be treated as duty for any specified 37 OA No-2450/2013 purpose the period of absence should be treated as 'non- duty'. In such event, the past service (i.e.) service rendered before dismissal, removal, compulsory retirement or suspension will not be forfeited.
(2) As Fundamental Rule 54 is absolute, the law of limitation restricting payment of arrears of subsistence allowance only for a period of three years in certain circumstances need not be invoked at the time of paying the arrears of pay and allowances for the period from the date of dismissal/removal/compulsory retirement/suspension to the date of reinstatement in respect of all cases where the pay and allowances are regulated on reinstatement in accordance with the provisions contained in F.R. 54, F.R. 54-A and F.R. 54-B."
63. Having taken note of the facts at length, the learned Administrative Member could take a view that once the applicant had been paid the subsistence allowance for the intervening period, the respondents carried out the order dated 10.11.2008 passed in O.A. No.365/2008. Could the spirit and intent of the captioned Order be such, the Division Bench could not have quashed the order dated 15.04.2004 as such is the spirit of the order dated 15.04.2004 also. In other words, even in terms of the order dated 15.04.2004 the period between 18.02.2000 onwards was treated under suspension but the O.A. No.365/2008 the Division Bench had quashed the said order. The clear ramification of the Order is that the Tribunal had not approved the action of the respondents of treating the period beyond 18.02.2000 under suspension and had directed reinstatement of the applicant in service. Merely because the applicant was paid subsistence allowance for the intervening period, we cannot avoid taking decision regarding treatment of such period. While doing so, we cannot disregard the view taken by the Divison Bench, which has attained finality. Once in order dated 31.05.2013 passed in M.A. No.1177/2012 38 OA No-2450/2013 in O.A. No.1208/2010, Division Bench of this Tribunal presided by Hon'ble Chairman, could give liberty to the applicant to challenge the order dated 30.05.2013, it would not be fair to say that by filing the present O.A. the applicant has sought to reopen the settled point. The plea raised by the applicant need to be adjudicated on merits. Paragraph 2 of the Order dated 31.05.2013 reads thus:-
"When the matter is taken up today, Shri H.K. Gangwani, learned counsel for respondents, states that the aforesaid order of the Tribunal has fully been implemented as the representation of the applicant has been disposed of by a reasoned order. He has also produced a photo copy of the order of Dy. Director of Archieves, Government of India dated 30.05.2013, whereby the applicant's claim of benefits had been disposed of by recording reasons. A copy of the order has also been given to the learned counsel for the applicant. Therefore, in view of the fact that the representation of the applicant has now been disposed of, we are of the view that no further order is required to be passed in this proceeding. However, learned counsel for the applicant submits that since the order passed on the representation addressed to the applicant has not been given to him, therefore, liberty may be given to him, if not satisfied with the order, to assail the same in appropriate proceeding. The Miscellaneous Application is, therefore, dismissed with liberty to the applicant to challenge the order dted 30.05.2013, if aggrieved, in appropreiate proceeding."
64. There is no challenge by the applicant to any inquiry report, penalty order or the order of appellate authority. The only plea espoused in the O.A. is regarding treatment of the period of suspension w.e.f. 21.08.1997. Such plea need to be adjudicated. Once in O.A. No.365/2008 this Tribunal had taken a view that the order dated 15.04.2004, in terms of which the period after 18.02.2000 was treated under suspension, was not sustainable and the applicant was directed to be reinstated back in service, the impugned order passed by the respondents being contrary to the spirit of the Order of the Tribunal and cannot be sustained. 39
OA No-2450/2013 In view of the aforementioned, I am unable to subscribe to the view taken by brother Administrative Member and respectfully disagree with the same.
65. In view of the aforementioned, the impugned orders are quashed. Respondents are directed to treat the period of service of applicant from 18.02.2000 till 19.01.2009 as spent on duty with all consequential benefits. The period from 21.08.1997 to 18.02.2000 should be decided by them in accordance with F.R. 54-B (1) and (5). OA stands disposed of. No costs.
(A.K. Bhardwaj ) Member (J)
66. There being difference of opinion, following points are referred to Hon'ble Chairman under Section 26 of Administrative Tribunals Act, 1985:-
i) When in terms of Order dated 10.11.2008 passed in O.A. No.365/2008 a Division Bench of this Tribunal had quashed the order datd 15.04.2004 whereby the period of service of applicant beyond 18.02.2000 was treated under suspension and had directed the reinstatement in service, whether any order passed by the respondents treating the period beyond 18.02.2000 again under suspension would not be contrary to the Order passed by the Tribunal in the said O.A.
ii) In what manner the period of service of the applicant between 21.08.1997 and the order of compulsory retirement should be treated.40
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(iii) When before the order of the Tribunal dated 10.11.2008 in OA No.365/2008 could have been implemented, after rejection of R.A. No.190/2008 on 24.12.2008, there was a break in the causation, and therefore, the causation of the responsibility of the respondents to implement the then orders of the Tribunal, whether the maxim novus actus interveniens would apply in this case?
(A.K.Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /cc/sk/ 41 OA No-2450/2013 42 OA No-2450/2013