Central Administrative Tribunal - Delhi
Deepak Katara vs M/O Health And Family Welfare on 14 August, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 2373/2019
New Delhi this the 14th August, 2019
Hon'ble Sh. Pradeep Kumar, Member (A)
Deepak Katara, Aged 40 Years,
Ex-Nursing Office, Group 'C'
S/o Sh. Kedar Nath Katar,
R/o Flat No. 4, Delux Apartments,
Ward No. 6, Mehrauli,
New Delhi.
.........Applicant
(By Advocate: Sh. M. D. Jangra)
Versus
1. The Secretary
Ministry of Health & Family Welfare,
Nirman Bhawan, New Delhi.
2. The Chairman,
Governing Body,
All India Institute of Medical Science (AIIMS)
Ansari Nagar,
New Delhi- 110029
3. The President
All India Institute of Medical Science (AIIMS)
Ansari Nagar,
New Delhi- 110029
4. The Chief Admn. Officer
All India Institute of Medical Science (AIIMS)
Ansari Nagar,
New Delhi- 110029
..........Respondents
(By Advocate : Sh. Shlok Chandra for Resp. No. 1)
2 OA 2373/2019
ORDER (ORAL)
1.0 The applicant was working as Ex-Nursing Officer. A criminal case was lodged against him and he was put under suspension on 26.05.2012. He was eventually dismissed from service on 20.02.2018. Applicant was aggrieved with the order of dismissal and preferred the OA and that OA is still pending.
2.0 The instant OA has been preferred by the applicant seeking payment of subsistence allowance at enhanced rate of 75%. The applicant pleads that he was paid subsistence allowance at the rate of 50 % during the period of suspension and he made representation for enhancing it from 50% to 75%, for which no action was taken by the respondents.
3.0 The applicant pleads that in terms of Rule FR 53 (1) (ii), the Government Servants who has been put under suspension, is required to be considered for payment of subsistence allowance which included enhancement as well as reduction of payment of subsistence allowance. The respondents were duty bound to enhance the same but this has not been done despite his representations. Hence he has preferred the instant OA. Relevant Rules of FR 53 (1) (ii) reads as under:-
"(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 :
(b) Provided that where the period of suspension exceeds three months, the authority which made or is deemed to have made the order of suspension shall be 3 OA 2373/2019 competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows :-
(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 percent 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 servant;
(ii) the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 percent 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 Government servant;
(iii) the rate of dearness allowance will be based on the increased or, as the case may be the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above."
(Emphasis Supplied) 4.0 He received certain replies to the RTI query, wherein he was given reply on 13.03.2019. It has been advised in this reply that one Committee was appointed by the respondents to examine his case and for extension of suspension and also about the payable rate of subsistence allowance. One such committee report which has been enclosed by the applicant along with the instant OA, was held on 15.05.2017. It is seen that the said committee has made following recommendations:-
"The Committee recommended that his suspension may further be extended from another period upto 20.07.2017. Subsistence allowance @ 50% is recommended to be paid during the suspension period till further orders."4 OA 2373/2019
4.1 Another committee meeting for the said purpose was held on 15.07.2017. It seen that the said committee made following recommendations;-
"The Committee recommended that his suspension may further be extended from another 3 months i.e. upto 20.10.2017 or till the final outcome of the proposed Disciplinary action of termination, whichever is earlier. Subsistence allowance @ 50% is recommended to be paid during the suspension period till further orders."
5.0 The applicant also relied upon the judgement passed by the Tribunal in OA No.513/2014 delivered on 18.03.2015. The applicant pleads that circumstances are similar and he needs to be granted same relief.
6.0 Matter has been heard at admission stage. A very close reading of rule FR 53 (1) (ii) in para 3.0 above, indicates that the respondents have discretion on the rate of payment of subsistence allowance during the period of suspension. There is no mandatory provision that it must be enhanced to 75% 7.0 In the instant case, it is seen that the relevant committee which examined the extension of suspension, had also gone into the question of subsistence allowance in their meeting on 15.05.2017 as well as on 15.07.2017 and taken a conscious decision that subsistence allowance shall continue at the rate of 50 %. The applicants' plea that these minutes have been supplied to him only now in reply to RTI, may be true but fact remains that the issue was considered at relevant point of time 5 OA 2373/2019 and a decision was taken. The decision to continue 50% was implemented and was in the knowledge of applicant. 8.0 The judgement relied upon by applicant in para 5.0 above, is not of much help to him. It is noted that in the case cited, the respondents had actually decided to enhance the rate of subsistence allowance from 50% to 75% but cancelled this order later. The applicant approached Tribunal for payment at 75%. This OA was allowed.
A plain reading indicates that facts in instant case are very different in that in the instant case, there was a conscious decision to extend suspension and to continue subsistence allowance at 50% whereas in the relied upon judgement, the decision to enhance to 75% was taken but cancelled later. Thus, this judgement is of no help.
Once respondents had considered the matter and taken a view within the parameters of rule, the leeway available for intervention by Tribunal is very limited.
9.0 In view of forgoing, there is no merit in this instant OA. Hence OA stands dismissed at admission stage itself. No costs.
(Pradeep Kumar) Member (A) /pinky/