Central Administrative Tribunal - Delhi
Ravinder Kumar Mirg vs Union Of India Through The on 14 March, 2012
Central Administrative Tribunal Principal Bench, New Delhi OA No.752/2012 With OA No.753/2012 Judgment reserved on: 13.03.2012. Judgment pronounced on:14.03.2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Ravinder Kumar Mirg, S/o Shri Madan Lal Mirg, 131, Punjabi Colony Narela, Delhi-40. -Applicant (Applicant in person) Versus 1. Union of India through the Secretary, Department of Revenue, Ministry of Finance, Govt. of India, North Block, New Delhi-1. 2. The Commissioner of Income Tax, Delhi-IX, Vikas Bhawan, Indraprastha Estate, New Delhi. 3. The Chief Commissioner of Income Tax, Delhi-IX, Vikas Bhawan, Indraprastha Estate, New Delhi. ..Respondents O R D E R Honble Mr. M.L. Chauhan, Member (J):
By this common order, we propose to dispose of both these Original Applications (OAs) filed by the same applicant. In these OAs the applicant has made a grievance regarding impugned order No.ITO(Vig.)/CIT-IX/2010-11/2329 dated 27.02.2011 (OA No.752/2012) and order No.ITO(Vig.)/CIT-IX/2010-11/2137 dated 08.02.2011 (OA No.753/2012) whereby the request of the applicant for the grant of subsistence allowance and revision of pay scale based upon the recommendations of the VI Central Pay Commission (CPC) was declined to the applicant vide the aforesaid orders on the ground that the same is not admissible in terms of the decision of the Apex Court in Union of India v. Ravinder Kumar Chopra, Civil Appeal No.1096 of 2010. The other grievance raised by the applicant is regarding order dated 08.12.2011, whereby the appeal of the applicant for enhancement of subsistence allowance was rejected. It has been prayed that a direction may be given to the respondents to restore order dated 12.10.2010 whereby the Commissioner of Income Tax has increased the subsistence allowance of the applicant retrospectively w.e.f. 22.06.2004 to 30.07.2009 when he was dismissed from service in terms of the provisions contained in FR 53 (1) (ii) without recording any reasons, which led to the prolonged suspension of the applicant and not attributable to the Government servant (Annexure A-7), which order was subsequently recalled/cancelled vide letter dated 1.12.2010, which order is not under challenge in these OAs.
2. In order to decide the aforesaid two issues, few facts may be noticed. The applicant while working as an Inspector in the office of the Chief Commissioner of Income Tax, Delhi-IX was placed under suspension vide order dated 22.03.2004, as criminal trial was pending and was ultimately dismissed from service on 31.07.2009. It is not in dispute that during his suspension period he was allowed an amount equal to 50% of the subsistence allowance in terms of FR 53 (1)(ii). It is also not disputed that he continued to draw the said amount till 31.07.2009 when an order dated 12.10.2010 was passed by the Commissioner of Income Tax (Annexure A-7), whereby the subsistence allowance, which the applicant was drawing, was increased by further 50%. At this stage, it will be useful to quote para-2 of the order dated 12.10.2010 (Annexure A-7), which thus reads:
2. The subsistence allowance already allowed to the above said official is hereby allowed to be increased w.e.f. 22/06/2004 to 31/07/2009 by 50% in terms of Rule 53 (1) (ii) of the subsistence allowance already allowed to him since his suspension period was prolonged for reasons not directly attributable to him.
3. It may be stated here that the order passed by the Commissioner of Income Tax, Delhi-IX was not inconformity with the mandate of FR 53 (1)(ii) (a) which stipulates that the amount of subsistence allowance can be increased by a suitable amount not exceeding 50% of the subsistence allowance admissible during the period of first 03 months, if in the opinion of the said authority the period of suspension has been prolonged for the reasons to be recorded in writing not directly attributable to the Government servant. As can be seen from the portion as quoted above, the competent authority has not recorded any reason in writing, which in his opinion warrants increase of subsistence allowance further by 50% and as to how the prolonged suspension is not attributable to the applicant. A perusal of this order also reveals that this order has been given retrospective effect from 22.06.2004 and it was incumbent upon the competent authority to give reasons as to why the applicants prolonged suspension is not attributable to him. For that purpose it was incumbent upon the Commissioner of Income Tax to give reasons whether the applicant has fully cooperated in the investigation and also in the trial before the competent court. Be that as it may, subsequently the competent authority has recalled/cancelled the said order vide CIT-IX letter dated 1.11.2010, as can be seen from the ultimate para of the appellate order (page 19 of the paper-book) dated 30.11.2011. The applicant has not challenged the validity of the order dated 1.11.2010 in these OAs, whereby the order dated 12.10.2010 further enhancing the subsistence allowance to the applicant was recalled/cancelled. As such, validity of this order cannot be gone into.
4. Thus, in view of what has been stated above, we are of the view that the applicant cannot make any grievance regarding order dated 30.11.2011 passed by the appellate authority whereby the appeal of the applicant for enhancement of the subsistence allowance was rejected.
5. Now let us advert to the other contention raised by the applicant regarding increase of the subsistence allowance as well as revision of the pay scale pursuant to the recommendations made by the VI CPC. According to us, the matter on this point is no more res integra and the same is squarely covered by the decision of the Apex Court in the case of Union of India v. R.K. Chopra, (2010) 2 SCC 763. In the present case the applicant was placed under suspension w.e.f. 26.03.2004, as a criminal case was pending against him. The revision of pay scales pursuant to the recommendations of the VI CPC became effective w.e.f. 1.1.12006 when the applicant was already under suspension. Subsequently, he has been dismissed from service w.e.f. 31.07.2009. Thus, according to us, the applicant is not entitled to revision of subsistence allowance, as well as revision of pay scale till he is not acquitted by the appellate court. At this stage, it will be useful to quote paras 28 to 31 of the judgment, which thus read:
28. On a combined reading of Note 3 to Rule 7 of the Revised Pay Rules and FR 53(1)(ii)(a) with the clarification with Office Memorandum dated 27th August, 1958 it is clear that if the revision of pay takes effect from a date prior to the date of suspension of a Government servant then he would be entitled to benefit of increment in pay and in the subsistence allowance for the period of suspension, but if the revision scale of pay takes effect from a date falling within the period of suspension then the benefit of revision of pay and the subsistence allowances will accrue to him, only after reinstatement depending on the fact whether the period of suspension is treated as duty or not.
29. In view of the clear distinction drawn by the Rule making authority between the cases in which the Revised scale of pay takes effect from a date prior to the date of suspension and a date falling within the period of suspension, the plea of discrimination raised cannot be sustained especially when there is no challenge to the Rules. The benefit of pay revision and the consequent revision of subsistence allowance stand postponed till the conclusion of the departmental proceedings, if the pay revision has come into effect while the Government servant is under suspension.
30. So far as the present case is concerned, the Revised Pay Rules came into force on 1st January, 1996 when the respondent was under suspension and later he was dismissed from service on 04.08.2005 and hence the benefit of pay revision or the revision of subsistence allowance did not accrue to him. The Tribunal as well as the High Court have committed an error in holding that the respondent is entitled to the benefit of Revised Pay Rules. We, therefore, allow the appeal and set aside those orders.
31. We are informed that the respondent herein has filed an appeal against the order of conviction passed by the Criminal Court and the same is pending consideration and if he is acquitted in appeal, the disciplinary authority would take appropriate decision on the respondent's claim for revised pay scale and the subsistence allowance in accordance with law.
6. The ratio, as laid down by the Apex Court in the case of R.K. Chopra (supra) is fully attracted in the facts and circumstances of the present cases. Rule-7 (1) of the Central Civil Services (Revised Pay) Rules, 2008 had been made operative w.e.f. 1.1.2006, which deals with fixation of initial pay in the revised pay structure, which is reproduced hereinbelow:-
7. Fixation of initial pay in the revised pay structure:
(1) The initial pay of a Government servant who elects, or is deemed to have elected under sub-rule (3) of rule 6 to be governed by the revised pay structure on and from the 1st day of January, 2006, shall, unless in any case the President by special order otherwise directs, be fixed separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien if it had not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely:--
xxx xxx xxx xxx Note 4-- A Government servant under suspension, shall continue to draw subsistence allowance based on existing scale of pay and his pay in the revised pay structure will be subject to the final order on the pending disciplinary proceedings.
7. The word existing scale of pay has been defined under Rule 3 (2), which reads as under:
existing scale in relation to a Government servant means the present scale applicable to the post held by the Government servant (or, as the case may be, personal scale applicable to him) as on the 1st day of January, 2006 whether in a substantive or officiating capacity. Note-4 under Rule-7, therefore, indicates that when a Government servant is placed under suspension, he shall continue to draw subsistence allowance based upon the existing scale of pay and his pay in the revised pay structure will be subject to the final order on the pending disciplinary proceedings. Almost pari materia provisions exist in the Central Civil Services (Revised Pay) Rules, 1997, which were under consideration before the Apex Court in R.K. Chopra (supra).
8. Thus, according to us, applicant is not entitled to the benefit of pay revision and consequent revision of subsistence allowance which shall stand postponed till he is acquitted in appeal. In that eventuality the Disciplinary Authority would take appropriate action on the claim of the applicant for revised pay scale and the subsistence allowance in accordance with law. OAs shall stand disposed of accordingly. No costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.