Central Administrative Tribunal - Mumbai
Surendra Bhau Phalke vs Revenue on 4 June, 2024
1 OA No.326/2022
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION Na.326 OF 2022
Dated this Tuesday, the 04" day of June, 2024
CORAM: HON'BLE SHRI R.N. SINGH, MEMBER (J)
HON'BLE.SHRI RAJINDER KASHYAP, MEMBER {A}
Shri Surendra Bhau Phalke, Hawaldar, Aged 56 years,
6/6, Raghunath Maharaj Street, Mandvi Koliwada,
Muribai 400 003.
-Applicant
(By Advocate Shri H.6.Dharmadhikari)
VERSUS
The Principal Chief Commissioner, GST Bhavan,
415, Maharshi Karve Road, Opp. Churchgate Station,
Mumbai 400 620
The Principal Corimissioner CGST and C. Excise GST Bhavan,
115, Maharshi Karve Road, Opp. Churchgate Station,
Mumbai 400 020.
The Additional Commissioner (P&V}CGST and C. Excise,
Mumibai Central GST Bhavan, 115, Maharshi Karve Road,
Opp. Churchgate Station, Mumbai 400 020.
The Deputy Commissioner (P&V}CGST and C. Ex,
Mumbai Central GST Bhavan, 115, Maharshi Karve Road,
Opp. Churchgate Station, Mumbai - 400 020. - Respondents
(By Advacate Shri R.R.Shetty)
Reserved on 13.03.2024
Pronounced on.04.06.2024
Page 1 of 33
Act, 1985. The following relief is sought by the applicant in the present
OA:.
2.
? OA No.326/2022
ORDER
Per: Rajinder Kashyap, Member (A)
This OA is filed under Section 19 of the Administrative Tribunals "8(a), To fold that Applicant is entitle for the subsistence allowance for the period from the date of order of dismissal to the date of order of reinstatement i.e. from 25.06.2015 to 07.02.2019 as per Rule 10(3) of CCS(CCA) Rules, 1965.
8b). To hald that the impugned order dated 19.01.2021 upholding the Order in Appeal dated 07.02.2019 to the extent -- of pastponement of determination of payment of subsistence allowance payable during the period from the date of order of dismissal to the date of order of re-instatement i.e. from 25.06.2015 to 07.02.2019 is erroneous and contrary to the provisions of Rule 10(3) of CCS (CCA) Rules, 1965.
Sic). To hold that Applicant is entitle for enhancement in Subsistence Allowance from 50% to 75% in terms of FR 53(1)(ii)(a}(i) as no delay is attributed on the part of Applicant.
Bld). any other and further order/s as this Hon'ble Tribunal miay deém 'fit, proper and necessary in the facts and circumstances of the case.
ie). Cost of this Original Application be provided for."
The brief facts of the case are that the Applicant joined the Central Excise Department as on temporary basis in the year 1991. He sans nnaatsevearncse TE © Page 2 of 33 3 OA No.326/2022 was promoted to the post of Group 'Df' sepoy on temporary basis on 12.08,1994. He has produced requisite original certificate including a school ieaving certificate dated 44.12.1992 issued by N.M. joshi Marg Night High School, Bombay-11, indicating that the Aoplicant had passed 9"Class (Standard). The genuineness of the particulars mentioned in the Bic-Data of the Applicant in Part | of his Service Book was verified for Applicant educational details from the original of said school leaving certificate by. the: then Assistant Chief Accourtts Officer, Central Excise, Bombay 05.10.1994. The Applicant was promoted to the post of Hawaldar in year 2013.
a{a}. On the basis of anonymous complaint filed with the department alleging submission fake School Leaving Certificate in the year 1994 at the time of appointment to the post of Sepoy, the department initiated inquiry against the Applicant and thereby issued Memorandum proposing imposition. of major penalty vide letter under F. No. 11/8-B- 6/Vig/C.Ex.-M-1/2013/94 dated 67.02.2014(Annexure A-2} under Rule 44 of CCS (CCA) Rules, 1965 to the Applicant. In pursuance of said issuance of Memorandum of charge, the Applicant was suspended vide 5 Be lau GE | Page 3 of 33 4 OA No.326/2022 order | issued under F.No.11/88- 6/Vig/C.Ex.-M-1/2013/99 dated 40.02.2014 {Annexure A-3) passed by the Joint Commissioner, P&V, Central Excise, Mumbai-] Churchgate.
2(b). Further, the department has also lodged Criminal Complaint No.882 of 2014 on 27.10.2014 against the Applicant before the Learned Metropolitan Magistrate 64 court, Mumbai on the same set of allegations made in the memorandum dated 07.02.2014. In the said complaint, the learned Metropolitan Magistrate after considering the oral and written evidences advanced by both the side exonerated the Applicant from the said complaint by passing the order of acquittal on 71.01.7019 (Annexure A-4). The said order has not been challenged by the way of Appeal to the Appellate forum and hence attained the finality. Despite. of pendency of Criminal Proceedings against the Applicant without considering the request to keep the departmental preceeding in abeyance, the Disciplinary Authority directed to proceed with the departmental proceedings. Accordingly, the Applicant participated in the proceedings and submitted his submissions before the Inquiry Officer. The Inquiry Officer submitted his report on _ Page 4 of 33 5 OA No.326/2022 39.04.2015 {Annexure A-5S} to the Disciplinary Authority without considering the. request for furnishing of documents.as sought by the Applicant during the inquiry proceedings.
2(c). Applicant submitted his written representation to the Learned Disciplinary Authority vide letter dated 30.05.2015 (Annexure A-6) requesting for documents as asked before the inquiry officer.The Learned Disciplinary Authority without considering the said request and without granting a fair and reasonable opportunity of persona! hearing passed an order dated 25.06.2015 (Annexure A-7) in defiance of principle of natural justice and thereby imposed major penalty of dismissal from service.Applicant being aggrieved by the said order preferred an appeal before the Appellate Authority | Learned Commissioner of Central Excise Mumbai-l on 14.08.2015. Applicant also filed additional grounds of appeal vide his letter dated 07.09.2015.
2{d)}.. The appficant states that the learned Commissioner of Central Excise granted a personal hearing to the Applicant on 08.11.2018. The same was attended by the Applicant with his Defense Assistant. During the said hearing applicant through his Defense Assistant submitted Page S of 33 6 OA No.326/2022 written submission along with a compilation.Further, on being exoneration fram the criminal complaint filed by the department the Applicant submitted a copy of order dated 21.01.2019 passed by Hon'ble Metropolitan Magistrate vide letter dated 25.01.2019 for kind 'consideration of Appellate. Authority. Wherein the Co mpetent Court has Passed .an order acquitting the Applicant from the charges leveled by the police in the Charge sheet filed by the police in furtherance of complaint filed by the department after due investigation on the original complaint received 'by the department against the Applicant.The Learned | Appellata Authority remanded the matter back to the Disciplinary Authority for non-observance of Rule 14/18) of CCS(CCA} Rules, 1965 as weil as on the ground of discrepancies observed in inquiry report vide order in appeal: dated 07.02.2019 (Annexure A-11}. Whereas, while setting aside the order of dismissal and reinstating the Applicant on the same conditions prevalent on the date of dismissal of Applicant on tha erroneous ground of delay on the part of Applicant hold that he shall not be entitled for back wages/allowance from the Page.6 of 33 7 OA No.326/2022 date of dismissal till the date of reinstatement L.@., from 25.06.2015 to 07.02.2019, 2(e]. Being partly aggrieved by the said Order in Appeal to the extent of non-éntitlement of allowance from the date of dismissal to the date of reinstatement the Applicant preferred Revision Application before the Revisionary Authotity. Principa | Chief Commissioner CGST & Central applicant by upholding the Order in Appeal. Further, the Applicant vide his: letter dated 17.12.2079 (Annexure A-13) ad dressed to the Disciplinary Authority requested to enhance the sy bsistence allowance fram 50% to 75% in terms of FR. 53{1}(ii}fa}. tn response to the said request, he is in. receipt of letter dated 23.12.2020 (Annexu re A-14) from the office of Assistant Commissioner (Pav), CGST & C. Ex. Mumbai Central under the approval of Disciplinary Authority wherein the same has been rejected without citing any réason for the same, 2(f). It is contended that despite of exonerated by the Magistrate Court after weighing all the evidences put forth by the Department: the Page 7 of 33° &: GA No.326/2622 Applicant i is compelled to face the departmental enquiry and by passin ng the impugned Order directing to defer the Payment of Subsistence Allowance receivable for the period between the date of Order of Dismissal to the date of Re-ifistatement after the conclusion of the Departmental Inquiry is Unjustifiable on the part of the Department and, therefore, the impugned order passed in Violation of FR 53, FR54, FR 54 A and FR 54 B of the Fuhdarnental Rules is unsustainable. That while remanding the matter back to the disciplinary authority by setting aside the order of dismissal with further inquiry it is mandatory on the part of Authority to reitistate the Applicant to the Position prior to the date of dismissal and it is not merely technical necessity. Thus, decision of deferring to the determination and Payment of subsistence allowance for the intermediate period pest final conclusion of disciplinary proceedings is beyond the scope of Rule 1O(3) CCS(CCA) Rules, 1965 and hence not sustainable.
2(g). That the Appellate Authority has erred while deferring the payment of subsistence allowance for the reason of delay attributable oan the part of Applicant without giving any cogent reasons. It js Page 8 of 33 9 OA No.326/2022 subroitted that mere contention of delay on the part of Applicant cannot exonerate the Appellate Authority from taking decision on subsistence allowance payable for the period spend before Appellate Authority. That the Disciplinary Authority is erred by not enha ncing the subsistence allowance from 50% to 75% as there is no delay caused in the conclusion of departmental! enquiry on the part of Applicant. It is submitted that the Applicant has participated 'in the proceeding and thereby submitted his. vérsion before the lnquity Officer on 15.06.2021, whereas, till date no Inquiry Report has been forwarded by the said Authority. Therefore, if-any delay is occurred it is on the part of department and for the same Applicant should not be suffered. It is sub mitted that case of Applicant is merit for consideration as the Learned Magistrate Court has exonerated the Applicant from the charges based on the investigation carried out by the department, Thus, it is submitted that for no fault on the part of Applicant and for the investigation cenducted based on false anonymous complaint, the Applicant should not be made suffer.
2(h). It is submitted that Applicant is under suspension from 2014 and has not obtained any employment till date. Thus, the Applicant is solely --
Page 9 of 33 "10 OA No.326/2022dependent upon the subsistence allowance received from the - Respondent. Therefore, aggrieved by the inaction on the part of the respandents, the applicant has filed this OA.
3. Reply has been filed by the respondents on 29.09.2022 wherein respondents have submitted that the present Original Application deserves to be dismissed on account of non-joinder of essential parties as per Section 79 and 80.of Civil Procedure. Code which requires that a Department of the. Government cati orily be sued through its Secreta ry. The applicant has, however, failed to file the present O.A. and sue the Department through its Secretary but has sued the Department through the office of the Principal Chief Commissioner. The O.A. therefore deserves ta be dismissed on account of non-jainder.
3{a}. Theysubmit that the issue in the present O.A. is in a narrow 'compass in that the applicant had been issued a charge memorandum oh 07.02.2014 where it was alleged that he had obtained employment in the office of the respondents in the post of Sepoy by furnishing a fake school leaving certificate purportedly issued by N.M. Joshi Marg Night High Scheol which was found to be not in existence during the relevant Page 10 of 33 rh OA No.326/2022 period in time, The charge in this regard came to be conclusively proved whereafter the pena ity of dismissal from service was imposed upon the applicant on 25.06.2015. The applicant has filed an appeal before the Appellate Authority on 25.06.2015 and raised several new points which he had never raised in. the proceedings till then, The Appellate Authority vide. its order dated 07.02.2019 remanded the case back to: the Disciplinary Authority for deciding the case afresh on the aspects d iscussed in para 18: of the said order.
3(b). The respondents, therefore, submit that the inquiry has got delayed on account of the stand of the applicant where he raised fresh issues in the appeal which he had not hitherto dealt with during the course of the departmental proceedings. This has led to delay in 'finalization of the departmental proceedings. In the mea nwhile, it would be relevant to state that the applicant was also being proceeded against in a criminal trial before the court of relevant jurisdiction. The Fespondents submit that the said court finally passed a judgment on 21.01.2019 which is enclosed at page 31 of the OA being Metropolitan Magistrate's Court in Mumbai which has come to acquit the applicant.
Page 11 of 33| t 12 OA No. 326/2022 The applicant is also contending that on account of the said acquittal he is now entitled to 4 blotfess. reinstatement. However, a careful perusal Of the chargesheet filed against the applicant in the criminal court, a copy whereof is enclosed as R-1, will go to show that the allegations therein was that the applicant had forged the school leaving certificate which had Produced in the office of the respondents to obtain employment in the post of Sepoy »whereas, in the de partmental Proceedings, the cha rge is net that the applicant had forged the school leaving certificate but the charge is that the applicant had produced a fake schol leavin & certificate, 3(c}). itis, therefore, obvious that the acquittal in the Magistrate Court allowance is concerned, the departmental Proceedings are now pending only 'On account of the applicant raising issues which he had not earlier raised during the 'course. of the inquiry and, therefore, the delay squarely lies at his door. Since he is responsible for the delay in the departmental Proceedings, there is no question of enhancing the Page 12 of 33 13 OA No.326/2022 subsistence allowance. So far as the question of how to treat the subsistence allowance, the decision thereon will be taken by the competent Disciplinary Authority only at the time of imposing the penalty after conducting further proceedings in the inquiry. in the light of the aforesaid submissions, the present Original Application is completely devoid of merits and no relief deserves to be granted to the applicant. The respondents therefore respectful ly pray that this Hon'ble Tribunal be pleased to dismiss the Original Application with costs.
3(d). The respondents submits thata Charge Memorandum F.No, I1/8B- 6/Vig/CEx.M-1/2013 dated 07.02.2014 was issued to Shri Surendra B. Phalke, Havaldar under Rule-14 of the CCS(CCA) Rules, 1965. The charge leveled against him, is that he gained appointment in the department as 'Sepay' by furnishing.a fake schoo! leaving certificate Purportedly issued by N. M. Joshi Marg, Night High School; that there is no such schoo! in the area; that no record of the said school is available on the records of the Education Department, thereby failing to maintain absolute integrity and acting in a manner which is. unbecoming of a Government servant thus contravening the provisions of Rule 3(1)(i) & 3(1}(iii) of the | Page 13 or 33' 14 OA No.326/2022 CCS(Conduct) Rulés, 1964. Preliminary enquiry with the concerned Education Inspector, revealed that the said school does not exist. The Disciplinary Authority, after 'following the procedure laid down under the CES(CCA) Rules, 1965, imposed the penalty of 'Dismissal from service' en the applicant, vide Order-in-Original F.No.1I/8B-6/Vig /C.Ex/M-1/2013 dated 25/06/15.
3({e). They further submits that the applicant filed an appeal against the said Order-in-Originial dated 25.06.2015. While filing his appeal, the applicant raised many new points which he had never raised in the proceedings till then. The Appellate Authority i.e. Principal Commissioner, CGST & CEX, Mumbai Central vide Order-in-Appeal dated 07.02.2019 remanded the case back to the Disciplinary Authority for deciding the case afresh on the aspects discussed in Para 18 of the said order. The Appellate Order is remanded back to verify certain discrepancies in the report of the education department dated 23.01.2014 and ambiguities in the letter dated 08.01.2014 of Head Master Zilla Parishad School. The Appellate Authority in Para 19 of the Order in Appeal mentioned that "As the delay caused is attributable to Page 14 of 33 15 OA No.326/2022 the appellant, | erder that he shall not be entitle to back wages/ allowances from the date of his dismissal from service till his reinstatement". tt is further ordered that "if the dismissal of the appellant is set aside after deciding his case afresh, separate orders will be required to be passed by the Disciplinary Authority with regard to treatment of the period from the date of dismissal to the date of his reinstatement after following the due procedure."
3(f). It is-submitted thatthe Appellate Authority has examined the case against the applicant in detail and remanded the case back for cartying out certain verification of discrepancies pointed out by the applicant in his-Appeal. The said discrepancies were not pointed out by the Applicant till then in the entire departmental proceedings. Therefore, it is stated that if after deciding the case afresh the dismissal is set aside then fresh orders will be required to be passed for treatment of the period from the date of dismissal to the date of reinstatement. This implies that even though the Applicant pointed out certain discrepancies at the appellate stage, the Appellate Authority still gave him an Opportunity to redeem himself. In view of the above, till the case is decided afresh, after .
Page 15 of 33 16 OA No.326/2022examining the points raised by the appellate authority and order is passed by the Disciplinary Authority, the period between Dismissal and reinstatement i.e. 25.06.2015 to 07.02.2019 should be kept in abeyance and as such no. subsistence alowance can be granted till the finalization | of case.
3(g). It is submitted that the contention of the applicant that the Appellate Authority has erred while deferring the payment of subsistence allowance for the reason of delay attributable on the part of applicant without giving any cogent reason ts totally wrong and baseless as the Appellate Authority in Para 17 has explained the reason of delay attributed on the part of applicant in detail. In para 17 of the Appellate Order, the Appellate Authority has mentioned that -
"The appellant has raised several fresh arguments/contentions at the appellate stage, During the personal hearing too he had submitted arguments on fresh aspects including that of the nexus between the Jeevan Shikshan Vidya Mandir and Zilla Parishad Primary School. He was required to raise these contentions/ arguments during the course of investigation, inquiry and in his written defence before the Disci plinary Authority. In order not to-deny him the ben efit of Principles of Natural Justice, | find that the Department had undertaken Jot of efforts to trace out the relevant recruitment records of the appellant which are as old-as 30 years."Page 16 of 33 17 OA No.326/2022
3(h). This indicates that the Applicant did not raise the said objections / points during the entire proceedings. These fresh points raised were not pecause of some new incident / fresh documents which arose during the course of the inquiry. These were based on the same set of documents Which had been | handed over to him along with the charge memorandum. These fresh points could have been raised by him during thé inquiry proceedings ar at the time of filing his written defense. Even then, he was given an opportunity by the Appellate Authority by ordering verification of the points / discrepancy pointed out by him at such a late stage. The delay caused was attributable to the Applicant. Further, none of the points raised were in the form of giving proof of his innocence. In view of the above, in para 18 of the ¢ arder in appeal, the appellate authority ardered that "as:the delay caused js attributable to the appellant, } order that he shall hot be entitled to back wages/ allowances from the date of his dismissal from service till his reinstatement".
3{i). lt is again submitted thatthe delay is caused by the applicant by raising several fresh arguments / contentions at the appellate stage. He Page 17 of 33 48 QA No.326/2022 'was required to raise these contentions/ arguments during the course of investigation, inquiry and in his written defence before the Disciplinary Authority, Due to this, to give natural justice to the appellant, Appellant Authority vide Order-in-Appeal dated 07.02.2019 had to remand the Case back to the Disciplinary Authority for deciding the case afresh on the aspects discussed in para 18 of the said order. This needs further verification 'of report of the education department dated 23.01.2014 and ambiguities in the letter dated 08.01.2014 of Head Master Zilla Parishad School. Had these points been raised by the applicant in the earlier disciplinary proceedings, the same would have been dealt at that time and case would have been settled at the earliest. Therefore, the delay is indeed caused by the applicant.
3{j). ft is submitted that the criminal! ase against the Applicant was urider Sections 465, -466, 468,471 and 420 of the IPC 1860. The crimina| court looked into the aspect of forgery being done by the Applicant himself which was not the case of the department. The criminal court did not go into the merits of the existence of the school or otherwise, which the department did. In the criminal case, the withesses were Page 18 of 33 ig DA No.326/2022 different than those in the. departmental case. Officer of the Education Department on whose report the case of the department was proved, Was not called as witnesses in the criminal case. The departmental officers y were made. "Witnesses in the criminal case. Hence, though the department had initiated the criminal case, both the cases were on different evidences and the witnesses in both the cases were also different, Hence, both the cases are different. Therefore, the Subsistence Allowance as applicable under F.R.53(1}(ii) is given to the applicant. Therefore, they Pray before this Tribunal to dismiss the present Original Application with costs,
4. in rebuttal, applicant has filed rejoinder on 24.01. 2023, wherein, he has reiterated the same grounds as mentioned in the present OA. However, the applicant subtaits that he is in receipt of Reply dated 26.09.2022 filed by Resporidents through Deputy Commissioner (P&V} without attaching or appending the document evidencing authority authorizing him to file reply on behalf of the Respondents, The Reply filed by or on behalf of the Respondents is not supported by an Affidavit of the Person who has verified the Reply.
Page 19 of 33 20 OA No.326/20224{a). Applica nt submits that the contentions of respandents that there Is @ delay on the part of the Applicant by not raising the discrepancies during the course of the enquiry but raised first time before the first Appellate Authority which is not correct. It is submitted that all the contentions raised before the first appellate authority were raised during the enquiry but sare were not appreciated and nat considered while itposing the major penalty of dismissal. Therefore, non- consideration of the. factual aspects during the. course of the enquiry by the enquiry officer cannot bé considered delay on the part of the Applicant. It is submitted that during the Inquiry Officer has not followed the provisions of the Rule 14 of the CCS Rules despite being objected. That in the inquiry officer has not provided Opportunity defend by allowing Appellant to examine himself as defense witness. A(b). The Applicant States that he has pointed out the discrepancies during the enquiry proceeding which resulted in the remand of the matter. It is submitted that all the facts were before the inquiry officer who had not considered the same in its proper prospective. Thus, the order of dismissal arising out of said inquiry is challenged by the Page 20 of 33 21 OA No.326/2022 Applicant before the. Hon'ble First' Appellate Authority. The First Appellate Authority has set aside the érder of dismissal and relegated the Applicant to Disciplinary Authority by putting the Applicant in the Status of suspension to conduct the fair inquiry in remand proceedings.
The Respendent have not paid the Applicant the subsistence allowance as per FR 53 read with Rule 10 of CCS(CCA) Rules, 1965 from the date of dismissal order till the date of reinstatement by order passed by First Appellate Authority and as. per 'the Order passed by First Appellate Authority the Applicant is in continuance of service. Hence, the Applicant is entitled for Subsistence Allowance as perFR 53 read with Rule 10 of CCS (CCA) Rule 1965. Therefore,merely alleging delay on the part of the. Applicant without anyjustification, the respondents cannot shirk out their responsibility to appreciate the facts in totality. Hence, thedecision of deferring to the determination of payment andsubsistence allowance for the intermediate periad post findlconclusion of the disciplinary proceedings is beyond the scope ofRule 10 (3) of CCS (CCA) Rules 1965.
Page 21 of 33 22 OA No.326/20224(c). Further, it is worthwhile to. note that the Appellate Authority ground 'for rejection for subsistence a llowance from the date of cismissal till reiastate ment is delay which is not caused by the Applicant but the Appeal proceedings consumed the period of four years despite the fact that the Applicant has attended the Appeal every day. There is nota single occasion that the Applicant has not attended the Appeal proceedings. On the contrary, the findings of the Appellate Authority nowhere pointed out that the Appellant was not diligent before the Appeal proceedi ngs. Théréfore, the imMpugitted observations for denial of subsistence 'allowance are groundless. He submits that under no provision of law First Appellate Authority can assume the Authority to differ Subsistence 'Allowance during the inquiry. Moreover, the Authority to decide such interim Subsistence Allowance fies with the Appointing Authority/ Disciplinary Authority and not with the First Appellate Authority, The refore, on both these counts the order passed by the First Appellata Authority to. the extent of deferment of Subsistence Allowance during the period is without authority of law and hence needs to be set aside.
Page 22 of 33 23 OA No.326/2022fd). it is submitted that the Applicant is exonerated by the Criminai Court in the matter of the Criminal Complaint filed by the Respondents in the same 'set of facts which are subject matter of the present Disciplinary Proceedings, Therefore, the contention raised in the said Para that the issue involved in the Criminal Proceeding is different than issue involved in the present proceeding is incorrect. [t is further submitted that the Applicant was suspended vide order dated 10.02.2014 and deprived the Applicant from his employment for more than eight years. Further, the Appl icant was wrongly dismissed from the Service: by the Respondents vide Order dated 25.06.2015. The said order of the Dismissal was Set aside only on 07.02. 2019 that is after 4 years from the date of dismissal for no fault of the Applicant.
Ae). tt is submitted. that.det ay in concluding the appellate proceeding cannot be attributed as a fault or delay on the part of the Applicant. Therefore, the Applicant is entitled for revocation of the suspension order and reinstatement in service pending the discipli hary proceeding which: is pending even after lapsing of more than three years from the date of the remand order. Hence, the contention that the Applicant has Page 23 of 33 24 OA No.326/2022 for the reason being the Applicant js entitled for the enhancement of the Subsistence Allowance fren 30%. to 75% which has not been enhancement of the same from 30% to 75% Post remand order. Therefore, he prays to allow the application.
5. Heard the learned counseis for the applicant and the respondents Page 24 of 33 25 OA No.326/2022
2. The petitioner had thereafter approached the Kerala State Road Transpart Appellate Tribunal by way of a revision and the revisional authority, by Ext. P-2 order, had set aside the punishment and remanded the case to the disciplinary autharity with direction to dispose of the case in accordance with law, after affording full opportunity te adduce defence evidence and defence documents,
3. Consequent to this Order, respondent Corporation is bound to hold a fresh proceeding against the petitioner and they are ot liberty to take appropriate action in accordance with law.
4. The contentions raised by the counsel for the petitioner is that the petitioner has to be deemed as Placed under Suspension because of the orders and therefore, he is en titled - fo get subsistence allowance at the admissible rates till such time further orders are passed as directed b ¥ the Tribunal.
theTribunat is that he will be denied as under suspension. But and P.M.Bayas v. Union of India. But counsel for the petitioner submits that the above decisions have no relevance at all and the Corporation is to pay full subsistence allowance to the parties concerned normally from the date of removal, till such time fufther-erders are passed,
6. / think this submission is acceptable and tegally admissible. Of course, the Standing Counsel referred to g circumstance that under Rule 10(5} of the Kerala Civil Services i Page 25 of 33 26 OA No.326/2022 (Classification and Control) Rules, only in a case where a Court of law set asides an order, it may be possible to treat the person as.an employee who is placed under suspension, | disagree. That migtt be one circumstance for treating an employee as a deerned Servant but when a decision has been passed by the statutory appellate Tribunal, and when the corporation is. able to take further steps for legally terminating the service of an employee, he has to he considered as placed under Suspension. Consequently, it is declared that the petitioner has to be given-subsistence allowance if otherwise eligible, after due enquiries within a period of ene month from today. Arrears, if any, are also to be paid. It is in the interest of the corporation to resort to the disciplinary proceedings as it deems fit.
4. The writ petition is disposed of as above."
7. Learned counsel for the respondents has also placed reliance on the decision of Hon'ble- High Court of Bombay in the case of Sachin Kumar Vs. The Union of india and others, decided on 01.03.2023 in Writ Petition No.123/2022 with the following facts and decision: -
"1. Petitioner, an ex-Constable in the Railway Protection Force (RPF), is aggrieved by the Order dated i5th January, 2019 dismissing him from service by dispensing with the enquiry. He also aggrieved by rejection of his appeal by order dated 19th September, 2019,
2. Petitioner was enrolled as @ member in RPF on Otst August, 2015 and was appointed on the post of Constable. On 12th December, 2078: he was deployed for platform duty between 7.00. Hrs. to 15.00 Hrs. at Grant Road Railway Station, A complaint was lodged by two: passengers against Page 26 of 33 237 OA No.326/2022 him alleging demand and acceptance of Rs. 12,000/- as illegal gratification by threatening them. it is alleged that the Government Railway Police (GRP) summoned petitioner, when he returned the amount of Rs. 12, 000/- to the Passengers, on account of which the GRP did not book him.
3. It appears that the fact @ finding Enquiry was conducted and d report was submitted by the inspecter, RPF, Mumbai Central. Based on the report so submitted, Senior Divisional
- Security Commissioner, RPF, Mumbai Central passed Ordér dated 15th January, 2019 dismissing petitioner from service observing that if was hot reasonably practicable to hald enguiry against him. Petitioner preferred appeal dated 5th February, 2019 before the Inspector General and Chief Security Commissioner, which has been turned down on 19th. September 2019. During pendency of appeal, he approached High Court of Gujrat by filing. Special Civil Application No.29257 of 2079 challenging the penalty Order dated 15th January, 2019, which he later withdrew on 13th November, 2029 with liberty to take appropriate action before the appropriate forum.
4. Petitioner has accordingly filed the present petition challenging penatty Order dated 15th January, 2019 as weil as order of the Appellate Authority dated 19th September, 2019, -
After going through the pleadings and arguments of the parties, the Hon'ble Bombay High Court held: -
"30. We aceordingly proceed to pass following order:
i} The order passed by the Senior Divisional Security Commissioner, RPE, Mumbai Central on 15th January, 2019 dismissing Petitioner from service as well as the order passed \ ; Page 27 of 33 28 OA No.326/2022 by appellant authority dated 19th January, 2019 are quashed and set aside.
if) Respondents are directed to reinstate petitioner in service with effect from 15th Jan vary, 2019, lif} Respondents are at liberty to conduct disciplinary _ proceedings against petitioner for alieged misconduct.
iv) The intervening Period from the date of dismissal tilt reinstatement shall. be treated as deemed suspension and petitioner would be entitled for payment of subsistence allowance as per Rules.
v) Depending on outcome of the departmental enquiry, the respondents shall take decision with regard to treatment of intervening period as duty ar otherwise.
vi) The writ petition is accordingly allowed. Rule is made absolute in above terms. There shall be no orders as to costs."
lt is seen that the Disciplinary Authority passed an order dated 25.06.2015. and thereby: imposed upon the a pplicant penalty of dismissal from service. Applicant preferred an appeal before the Appellate Authority on 14.08.2015 with additional grounds of appeal vide his letter dated 07.09.2015. A personal hearing was also given to the applicant in which applicant highlighted the facts of his exoneration from the criminal complaint filed by the department the Applicant submitted a copy of order dated 21.01.2019 passed by Hon'ble Metrepatitan Magistrate vide letter dated 25.01.2019 to the Appellate -Page 28 of 33 \ 29 OA No.326/2027 'Authority. the Appellate Authority remanded the matter back to the Disciplinary Authority for non-observance of Rule 14(18) of CCS (CCA) Rules, 1965 as well as on the ground of discrepancies observed in inquity report vide order in appeal dated 07.02.2019. While setting aside the order of dismissal-and reinstating the Applicant on the same conditions prevalent on the date of dismissal of Applicant on the erronéous 'ground of delay on the part of Applicant and held that he shall not be entitled to back wages/allowance from the date of disrissa! till the date of reinstatement i.e., from 25.06.2015 to 07.02.2019. The Revisionary Authority vide its order dated 19.01.2021 rejected the Revision Application fited by the applicant by upholding the Order in Appeal. The Applicant vide his letter dated 47.12.2020 addressed to the Disciplinary Authority requested to enhance the subsistence allowance from 50% to 75% in terms of F.R. 53(1) (tifa). In response to the said request, a letter dated 23.12.2020 was received from the office of Assistant Commissioner (P&V), CGST & C. Ex. Mumbai Centra! under the approval of Disciplinary Authority wherein the same has been rejected : | without citing any réason for ++ - | Page 29 of 33 30 OA No.326/2022
9. The facts that the Applicant is under suspension from 2014 and has not obtained any. employment till date are not controverted by the respondents. The applicant states that he is solely dependent upon the Subsistence allowance received from the Respondent. Therefore, aggrieved by the inaction on the part of the respondents, the applicant has filed this OA.
10. The respondents. have stated that as far as the question of enhanding the subsistence allowance is concerned, the departmental Proceedings are naw pending only on account of the applicant raising issues which he had not earlier raised during the course of the inquiry. Therefore, the delay squarely lies at his door. They state that since the applicant is responsible for the delay in the departmental proceedings, there is no question of enhancing the subsistence allowance. So far as the question of how to treat the subsistence allowance, the decision thereon will be taken: by the competent Disciplinary Authority only at the time of imposing the penalty after conducting further proceedings in the inquiry. In the light of the aforesaid submissions, the present Original Application js completely devoid of merits and no relief L I 1 1 \ Page 30 of 33 Bt. OA'No.326/2022 deserves to be granted. to the applicant and OA needs to be dismissed with costs. The law laid down in the citation relied upon by the respondents viz. Sachin Kumar Vs. The Union of India and others, decided on: 01.03.2023 in Writ Petition No:123/2022 (supra) lays down that the intervening period from the date of dismissal till reinstatement shall be treated as deemed suspe nsion and petitioner would be entitled for payment of subsistenicé.allowance as per Rules.
ii. Applicant is under suspension and as per the pleadings of respondents, disciplinary proceeding is pending against the applicant as he is delaying the proceedings on some pretext or other. Payment / Revision of Subsistence Allowance to the applicant who is kept under suspension is an issue which is a separate and unconnected matter and has no linkages to the expedited settlément of disciplinary proceedings. In this case, by not paying / conside ring enhancement in the Subsistence Allowance at appropriate intervals of time, the respondents are bringing avoidable pressure on the Applicant and through these tactics trying to compel hitn to yiéld to their desigh. Such tactics are against the principles of natural justice dnd respondents need to adhere to the.
rage 31 of 33 32 OA No.326/2022 principles. of natural. justice white conducting disciplinary proceedings. No purpose would be served to withhold payment of Subsistence Allowance to which the applicant is entitled to. Respondents are required to conduct the Departmental proceedings in a fair and impa rtial manner and while doing so provide fair oppertunity to the applicant to prove his innocence. Applicant also is required to cooperate ih the. disciplinary proceedings. so that this pending and old matter against him is takert to sore logical conclusion.
12. in view of aforementioned position, Original Application is allowed with the following orders: -
{a} The impugned order dated 19.01.2021 is quashed and set aside. Applicant is entitled fot the subsistence allowa nce for the period from 25.06.2015 to 07.02.2019. It is also held that with regard to settlement of Subsisterice Allowance, there is rio delay on the part of applicant as payment and revision of subsistence allowance completely falls within the domain of respondents. The applicant is entitled for Subsistence Allowance and consideration for enhancement in Subsistence Allowance from 50% to 75%. The Page 32 of 33 | | 33 OA No.326/2022 respondents shall pay the subsistence allowance to the applicant and also consider enhancement of Subsistence Allowance from 50% to 75% within 8 (eight) weeks fram the date receipt of certified copy of this order.
(b) Pending MA, if any, stands closed. No cost.
(RAJINDER KASHYAP} , (R.N.SINGH) MEMBER (A) MEMBER (J) kmg* Page 33 of 33