Central Administrative Tribunal - Delhi
R.S. Yadav vs Union Of India Through on 2 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. 626/2007
New Delhi this the 2nd day of July, 2010
Honble Mr. L.K. Joshi, Vice Chairman (A)
Honble Dr. Dharam Paul Sharma, Member (J)
R.S. Yadav,
S/o Shri Muralidhar Yadav,
At present
R/o 854, Sector-IV,
Gurgaon, Haryana Applicant
(Through Ms. Jasmine Ahmed for Shri A.K. Behera, Advocate)
VERSUS
1. Union of India through
The Secretary,
Ministry of Home Affairs,
North Block, New Delhi-110001.
2. The Chief Secretary,
State of Gujarat,
Secretariat, Gandhi Nagar,
Through Resident Commissioner,
Gujarat Bhawan, Chanakya Puri,
New Delhi.
3. The Home Secretary,
State of Gujarat,
Secretariat, Gandhi Nagar,
Through Resident Commissioner,
Gujarat Bhawan, Chanakya Puri,
New Delhi. Respondents
(Through Shri A.K. Bhardwaj, Advocate)
O R D E R
Mr. L.K. Joshi, Vice Chairman (A) :
Shri R.S. Yadav, an IPS officer of 1988 batch of Gujarat Cadre has been dismissed from service by the President qua disciplinary authority by order dated 28.04.2006, which is assailed in this OA.
2. The facts, which are relevant, in a nutshell, would reveal that the Applicant was posted as District Superintendent of Police of Gandhinagar District in Gujarat from January 1997 onwards. On 6.04.1999, a three year old girl named Ruchi was kidnapped from her school. The Applicant was the investigating officer in this case. On 16.04.1999, the girl was recovered from her kidnappers. On 17.04.1999, the Applicant was transferred out of Gandhinagar in the new posting as Vice Principal, Police Training College, Junagadh. The Applicant applied for medical leave with effect from 26.04.1999, which was not granted. The Applicant left Gandhinagar and moved to Gurgaon with him family in 1999. He was placed under suspension on 21.02.2000. On 20.04.2001, a Memorandum of Charge containing the following Articles of Charge was communicated to him:
Charge No.1 Shri R.S. Yadav, IPS (At present under suspension), the then DSP, Gandhinagar was transferred to Junagadh as Vice-Principal, Police Training College, Junagadh vide Government of Gujarat, Home Departments notification dated 17.4.1999, Shri Yadav took over the charge as Vice-President, Police Training College, Junagadh on 18.4.1999 and proceeded on joining time for 7 days on the same day without prior express approval of the competent authority. On expiry of the joining time on 26.4.1999, Shri R.S. Yadav, instead of resuming duty, remained absent from duty while asking for medical leave vide his fax message dated 26.4.1999. Thereafter, also he did not join duty at Junagadh. After that he was placed under suspension from 21.2.2000 and his headquarter has been fixed at Junagadh. But in spite of repeated instruction and reminders, he is abstaining from the duty/headquarter and thus, he is guilty of insubordination.
Thus, Shri R.S. Yadav has not shown devotion to duty and his conduct is unbecoming of a member of the Indian Police Service and violative of Rule 3(1) of All India Service (Conduct) Rules, 1968 and he is guilty of insubordination.
Charge No.2 Shri R.S. Yadav, IPS (At present under suspension), was instructed to remain present as and when the Standing Medical Board at Ahmedabad called him for medical examination as decided by the State Government vide Home Departments endorsement dated 15.7.1999, 20.8.1999 and vide telegrams dated 5.2.2000, 18.2.2000. 22.2.2000, 9.3.2000, 21.3.2000, 27.3.2000, 7.4.2000, 2.5.2000, and 26.5.2000. Shri Yadav was also called for medical examination on dated 23.2.2000, 15.3.2000, 29.3.2000, 19.4.2000 and 31.5.2000 by the Standing Medical Board vide its letters dated 8.2.000, 6.3.2000, 21.3.2000, 4.4.2000 and 20.5.2000. However, Shri Yadav did not remain present before the Standing Medical Board and disobeyed Governments instructions in this regard.
Thus, Shri R.S. Yadav has not shown devotion to duty and his conduct is unbecoming of a member of the Indian Police Service and is violative of Rule 3(1) of All India Services (Conduct) Rules, 1968 and he is guilty of insubordination.
3. Following the Memorandum of Charge and after considering the Applicants reply dated 25.11.2001 to the charge sheet, an inquiry was held by appointing an inquiry officer on 1.09.2003 and giving him a time of four months to complete the inquiry. The inquiry officer in his report dated 30.01.2004 held both the charges to be proved. The inquiry proceeded ex parte as the Applicant did not appear before the inquiry officer on the ground of illness, financial difficulties because of non-payment of subsistence allowance and perceived threat to his life in Ahmedabad, where the inquiry was being held. The Applicant was then dismissed from service by the impugned order dated 28.04.2006.
4. We have heard the arguments at great length. During the course of hearing, the arguments were advanced on several grounds by the learned counsel for the Applicant, challenging the validity of the order of dismissal. The learned counsel for the Respondents has also given his detailed replies to the arguments on behalf of the Applicant.
5. However, before we go into the other arguments, we may mention that one of the main arguments of the learned counsel for the Applicant is that the Applicant had been placed under suspension on 21.02.2000 and since then he has not been given subsistence allowance. It is contended that the Applicant had shifted to Gurgaon because he was undergoing treatment for hypertension and spondylitis and also because he felt that he was unsafe in Ahmedabad because of antagonism from powerful politicians, journalists and other persons while investigating some cases, including the Ruchi kidnapping case. It has been vehemently urged that the Applicant was in dire financial straits because of non-payment of subsistence allowance since after his suspension in the year 2000.
6. The learned counsel for the Applicant has pointed out that the Respondents have themselves accepted the fact in paragraph 5.7 of the counter affidavit that the subsistence allowance was not paid to the Applicant. The paragraph 5.7 of the counter affidavit is reproduced below:
5.7 That the contents of para 5.7 of the OA are misconceived and baseless hence denied. The threat regarding his security was an imaginary and without any basis. Applicant was suspended on 21.2.2000 and after the order of suspension applicant never reported to headquarter and ignoring Government notices to remain present at his headquarter. Therefore, Government took decision not to pay subsistence allowance till applicant report to his headquarter. However, Government issued an order dated 29.1.2007 to pay subsistence allowances to the applicant.
7. The Applicant had written to the inquiry officer also in his communications dated 10.12.2003 and 15.12.2003 that he had not been receiving subsistence allowance. On 9.06.2000 also, a letter was sent by the Applicant to the Principal, Police Training College, Junagadh (Annex A-13) in which also the Applicant requested for subsistence allowance as follows:
Sir, the applicant has repeatedly asked for his subsistence allowance but the same has not been given to him as yet. So it is hereby requested that the subsistence allowance of the applicant may kindly be sent to him at the following address immediately as the applicant is badly in need of money for his treatment as well as for the maintenance of his family members. The address given in this communication is of Gurgaon, where the Applicant was staying. Relying on Ghanshyam Das Shrivastava Vs. State of Madhya Pradesh, (1973) 1 SCC 656, Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another, (1999) 3 SCC 679 and Jagdamba Prasad Shukla Vs. State of U.P. and others, (2000) 7 SCC 90, the learned counsel for the Applicant would contend that the whole inquiry has been vitiated because of non-payment of subsistence allowance to the Applicant, which was contributory factor in non-participation of Applicant in the departmental inquiry.
8. In Ghanshyam Das Srivastava (supra), the appellant, a Forest Ranger in the Government of Madhya Pradesh was placed under suspension but was not given subsistence allowance. He was living in Rewa whereas the inquiry was being held in Jagdalpur, which is 500 kms. away from Rewa, where he was residing during his suspension. The Honourable Supreme Court in an earlier petition from the same appellant took the view that if no subsistence allowance had been paid to the appellant and that if he could not go to Jagdalpur and face the inquiry on account of non-payment of subsistence allowance, the inquiry would be vitiated and the order of dismissal could not be sustained. The case was remanded to the High Court to hear the parties on the question whether on account of non-payment of subsistence allowance the appellant was unable to appear before the inquiry officer. The High Court held against the appellant on the ground that the appellant had not complained specifically in the Writ Petition that he could not attend the inquiry as he had not been paid subsistence allowance and that he had no other means to meet the expenses of travelling. His (the appellants) affidavit gave no particulars about the source of his income and the estimated expenditure in travelling from Rewa to Jagdalpur and that the appellant had filed the Writ Petition before the High Court and thereafter before the Supreme Court, which showed that he had sufficient means at his disposal. The Honourable Supreme Court held thus:
5. With respect, we find it difficult to share the view taken by the High Court. Paragraph 5 of the writ petition expressly alleges that on December 5, 1964, the appellant sent a letter to the Enquiry Officer informing him that unless he was paid subsistence allowance he would not be able to face the enquiry proceedings. The letter was filed along with the petition. It is annexure H. The letter stated that "Until and unless I am paid subsistence allowance.......I categorically refuse to face any proceeding......as I have no capacity to do so because of acute shortage of funds." (emphasis added). This is obviously specific pleading on the point that for non-payment of subsistence allowance he was short of funds and could not attend the enquiry. It is true that his affidavit does not give any particulars about his sources of income and the estimate of expenses to be incurred in the enquiry. But it would prima facie suggest that he had no other sources of income except his pay. If he had no other sources of income, he could not invent them for the purpose of mentioning them in the affidavit. More significantly, the Government affidavit does not allege that he had any other source of income except pay. The fact that he had been drawing a monthly pay of Rs. 300/- till October, 1964, would not necessarily show that he had sufficient money to enable him to go to Jagdalpur to attend the enquiry in February, 1965. He was suspended on October 30, 1964 and thereafter he did not get subsistence allowance until March 20, 1965. Having regard to the prevailing high prices, it is not possible to draw any adverse inference against him from the mere circumstance that he had been receiving a monthly pay of Rs. 300/- till October, 1964. The fact that he filed a writ petition immediately on the passing of the order of dismissal and thereafter came in appeal to this Court, would not establish that he had enough resources to enable him to attend the enquiry. It seems to us that on the whole the High Court has gone by conjectures and surmises. There is nothing on the record to show that he has any other source of income except pay. As he did not receive subsistence allowance till March 20, 1965, he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965 after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Article 311 (2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings. (emphasis added)
9. The facts in Capt. M. Paul Anthony (supra) would show that the said Capt. M. Paul Anthony, the appellant before the Honourable Supreme Court was working as a Security Officer in the Bharat Gold Mines Limited, a Government undertaking at Kolar Gold Fields in Karnataka. Following a raid at his house, there was recovery of gold ball and some gold bearing sand. The appellant was placed under suspension. A criminal case as well as a departmental inquiry on the same facts, as in the criminal case, was started against the appellant. The appellant was dismissed from service in the departmental inquiry by an order dated 7.06.1986. On 3.02.1987, the appellant was acquitted in the criminal proceedings. The appellant, Capt. M. Paul Anthony, approached the High Court taking the plea that the respondent Bharat Gold Mines Ltd. should have stayed the departmental proceedings, in view of the institution of criminal proceedings on the same facts and grounds. The appellant also contended that during the period of suspension, he had not been paid any subsistence allowance with the result he could not undertake the travel from his hometown in Kerala to Kolar Gold Fields, Karnataka, where the departmental proceedings were being held. It is observed by the Honourable Supreme Court in the aforesaid judgement that this plea was not accepted by the High Court on the ground that it was not raised before the inquiry officer and it was not pleaded before him that he could not go to Kolar Gold Fields for participating in the departmental proceedings on account of non-payment of subsistence allowance. The Honourable Supreme Court held thus:
26. To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including the Government of India and the State Governments. [See : for example, Rule 10 of Central Civil Services (Classification, Control & Appeal) Rules]. Even under the General Clauses Act, 1897, this right is conceded to the employer by Section 16 which, inter alia, provides that power to appoint includes power to suspend or dismiss.
27. The order of suspension does not put an end to an employee's service and he continues to be a member of the service though he is not permitted to work and is paid only subsistence allowance which is less than his salary. (See : State of M.P. v. State of Maharashtra, (1977) 2 SCC 288).
.. .. ..
29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of subsistence allowance, so that the employee may sustain himself. This Court in O. P. Gupta v. Union of India, (1987) 4 SCC 328 made the following observations with regard to subsistence allowance (SCC p. 340, para 15) :
"An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India (AIR 1958 SC 300) is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance - generally called subsistence allowance - which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford `English Dictionary, Vol. II at p. 2171 is `to remain alive as on food; to continue to exist. `Subsistence means - means of supporting life, especially a minimum livelihood."
(emphasis supplied)
30. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of subsistence allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of subsistence allowance, would gradually starve himself to death.
31. On joining government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint does not become the master of the body and soul of the employee. The Government by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like instrumentalities of the Government or statutory or autonomous corporations, etc., is regulated by the terms of contract of service or service rules made by the Central or the State Government under the proviso to Article 309 of the Constitution or other statutory rules including certified standing orders. The fundamental rights, including the right to life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of subsistence allowance made in the service rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chandrabhan Tale, (1983) 3 SCC 803 struck down a service rule which provided for payment of a nominal amount of rupee one as subsistence allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer, (1986) 3 SCC 131 and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of subsistence allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Das Shrivastva v. State of M.P., (1973) 1 SCC 656.
32. The question whether the appellant was unable to go to Kolar Gold Fields to participate in the enquiry proceedings on account of non-payment of subsistence allowance may not have been raised before the enquiry officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that subsistence allowance was not paid to the appellant during the pendency of the departmental proceedings we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.
33. Since in the instant case the appellant was not provided any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of subsistence allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the enquiry officer at such proceedings, which were held ex parte, stand vitiated. (emphasis added) 10 In Jagdamba Prasad Shukla (supra), the appellant, who was a Sub Inspector, was placed under suspension by an order dated 1.06.1997. It is noted in the judgement that The appellant did not participate in the disciplinary proceedings allegedly on account of illness and being confined for medical treatment at Kanpur and also on account of financial crunch for non-payment of subsistence allowance. The appellant was proceeded against and was removed from service by order dated 11.02.1979. The appellant approached the High Court. The only contention pressed on behalf of the appellant before the High Court was that he could not participate in the departmental proceedings because of non-payment of subsistence allowance from the date of his suspension till the date of his removal from service and, therefore, the proceedings of the inquiry stood vitiated. The High Court rejected the appellants contention on the ground that he did not submit a certificate to the employer stating that there was not engaged in any other employment, which was essentially to be submitted. The other ground for dismissing the petition was that the appellant had not taken the ground that he could not participate in the inquiry because of financial crunch. The respondents did not deny before the Honourable High Court that the subsistence allowance had not been paid to the appellant. However, the respondents justified this on the ground that the appellant had not furnished the address where the amount had to be sent and also had not given the requisite certificate that he was not employed elsewhere during the period of suspension. The Honourable Supreme Court held thus:
8. The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension i.e. from suspension till removal. One of the reasons for not appearing in inquiry as intimated to the authorities was the financial crunch on account of non-payment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to the show-cause notice stated that even if he was to appear in inquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed.
11. In our considered opinion, the OA would succeed only on this ground, in the light of the judgements of the Honourable Supreme Court cited above that the proceedings of inquiry have been vitiated because of non-payment of subsistence allowance. In view of this, we do not think it necessary to consider several other arguments, advanced by both the parties and go into the merits of the case. We note that the Respondents have accepted that the Applicant herein was not paid any subsistence allowance from 2.01.2000, the date of his suspension and upto 28.04.2006, when he was dismissed from service. The subsistence allowance was only paid to the Applicant only after the Respondents issued the order dated 29.01.2007. It is not the case of the Respondents that the Applicant was gainfully employed elsewhere during the period of suspension. It has not been shown that the subsistence allowance would be paid only if the employee under suspension is staying at the prescribed headquarters, although averment to this effect has been made. However, there is no such rule in existence.
12. We have not considered, as already stated, several other arguments advanced by the parties.
13. In view of the above discussion, the order dated 28.04.2006 is quashed and set aside. The case is remanded to the Respondents for a fresh inquiry from the stage of appointment of the inquiry officer and examination of witnesses etc. Since the impugned orders have been set aside only on technical grounds, we are not awarding any consequential benefits except that the Applicant would be reinstated in service and would be considered to be under suspension from the time he was dismissed from service. Any other consequential benefits would abide by the decision taken in the disciplinary proceedings. The fresh disciplinary proceedings should be completed within six months from the receipt of a certified copy of this order, subject, of course, to the cooperation by the Applicant. There will be no order as to costs.
(Dr. Dharam Paul Sharma) (L.K. Joshi) Member (J) Vice Chairman (A) /dkm/