Central Administrative Tribunal - Delhi
Shri R. D. Gupta vs Union Of India & Others Through on 11 November, 2011
Central Administrative Tribunal Principal Bench OA No.2041/2009 New Delhi, this the 11th day of October, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri R. D. Gupta Commissioner of Income Tax HEXTAX Commune, Sector-43 Part, Gurgaon (HR). .. Applicant. (Applicant in person) Versus Union of India & Others through The Secretary Government of India Ministry of Finance, Department of Revenue, North Block, New Delhi 110 001. 2. The Chairman, CBDT, Ministry of Finance, Department of Revenue, North Block, New Delhi 110 001. Respondents. (By Advocate : Shri R. N. Singh) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Through this OA, Shri R. D. Gupta working as Commissioner of Income Tax (CIT) with the respondents, the applicant herein, is seeking payment of full pay and allowances which inter alia includes subsistence allowance from 14.05.2004 (when he was placed under suspension) to the date of filing of the OA (27.07.2009) along with pay arrears of 6th CPC. His prayers are as follows:-
(i) To direct the respondents to release to the applicant his full pay and allowances (which inter alia includes subsistence allowance allowed, but not paid, to the applicant for the period of his suspension), along with annual increments, arrears of 6th Pay Commission, increase in DA etc., w.e.f. May 2004 onwards till date along with compound interest @18% per annum.
(ii) To direct the respondents to pass a formal order for regularization of the period of suspension for all purposes.
(iii) To award costs of these proceedings which have been thrust upon the applicant for no fault of his and pass any other further order as deemed fit and proper in the facts of case and in the interest of justice.
2. While working as Commissioner of Income Tax (Appeal) Ajmer, he was placed under suspension vide order dated 14.05.2004 (Page-28) on the ground that a criminal case was under investigation. It was informed by the SP ACB, Rajasthan to the respondents that the applicant was collecting illegal gratification in lieu of deciding appeals while camping at Bhilwara. A case was registered u/s 13 (1) (c) and 132(2) of Prevention of Corruption Act, 1988 vide FIR No.37/2004 dated 28.02.2004 by the ACB following recovery of `380000 in cash from a vehicle which was allegedly about to accompany the applicants car on his return to Agra. His suspension was periodically reviewed and continued. In the meantime against the said suspension, he moved the Jaipur Bench of this Tribunal in OA No.219/2007. While issuing notice to the respondents in the said OA, learned Single Bench passed the following interim order on 22.06.2007:-
Heard the learned counsel for the applicant.
The case of the applicant is that he went on tour to Bhilwara where he was detained by the Anti Corruption Bureau team and accordingly an FIR was lodged against him on 13.02.2004 and in pursuance of this, the applicant was placed under suspension since 14.05.2004. Prior to this, the applicant had apprised the higher authorities in connection with the happening with him.
The respondents reviewed the suspension on 6.08.2004 (Annexure A/2) and ordered to continue the suspension of the applicant as disciplinary proceedings are contemplated against him. Respondents further reviewed suspension on 28.01.2005 (Annexure A/3), 22.07.2005 (Annexure A/4), 29.12.2005 (Annexure A/5), 5.06.2006 (Annexure A/6) and 1.12.2006 (Annexure A/7).
The applicant had represented against prolonged suspension on 10.01.2007. Again on 17.01.2007, the applicant made request for certain information relating to the matter of suspension under RTI Act, 2005. But the respondents have not made available any information as desired by the applicant.
Learned counsel for the applicant brought to the notice of this Tribunal Para 3 of Office Memorandum No.11012/4/2003-Estt.(A) dated 7.01.2004 (annexure A/13), which thus reads as under:-
The Review Committee (s) may take a view regarding revocation/continuation of the suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to Undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been under suspension for one year without any charges being filed in a court of law or no charge memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime, the Review Committee may recommend the continuation of the suspension of the officer concerned. Learned Cousnel for the applicant also cited the case of K. Sukhendar Reddy vs. State of A. P. and Another, 1999 SCC (L&S) 1088 and the case of Ramesh Chandra Gupta vs. UOI & Ors., OA No.518/2004 decided on 16.05.2005.
It was further submitted by Learned Counsel for the applicant that the applicant is facing prolonged suspension without any basis and the suspension itself is not justified in present matter and nothing is adverse against the applicant. The applicant was neither arrested nor kept in police custody and there is no national security threat by any act of the applicant. The applicant will suffer an irreparable loss which cannot be compensated and, therefore, prayed for interim relief.
After hearing the learned counsel for the applicant and perusal of documents on record and keeping in view the facts and circumstances of the case it is felt that it is a case of undue long suspension and hardship specially when the applicant was never arrested nor kept in police custody and no criminal and departmental proceedings have been initiated so far against the applicant. Thus, in this case it is wholly unjustified and against the spirit of instructions issued by the Government of India, vide Para 3 of OM dated 7.1.2004 to unnecessarily prolong the suspension of the applicant and applicant deserves to be granted interim relief without prejudice to the case against him. It is more than 3 years that the applicant is under suspension without issuance of any charge memo under criminal and departmental proceedings. Therefore, prima facie, there is good merit in the case and this Tribunal is compelled to intervene in the matter at this stage.
Accordingly, notices are issued to the respondents returnable within four weeks. List on 15.07.2007. The respondents are directed to revoke the suspension of the applicant and reinstate him in service within a period of 15 days by posting him at any place deemed fit.
3. Pursuant to the above order, the Competent Authority having reviewed Applicants suspension on the recommendations of the Review Committee decided vide order dated 08.08.2007 (Page 41) to revoke the applicants suspension which was communicated to him vide letter dated 28.08.2007 (Page-40). The applicant in his Joining Report (available at Annexure A-19) reported about his joining on 12.10.2007 (Forenoon). In the meantime, the applicant was posted as CIT (ITAT)-II Chennai vide order dated 11.10.2007 (Page 44) in compliance of the direction of the Jaipur Bench of this Tribunal in OA No.29/2007 which on receipt by him on 29.10.2007 represented vide letter dated 31.10.2007 (Page-45) to the second respondent that the said transfer order was defective on the ground that on revocation of his suspension he was to join at Ajmer where he was suspended and transfer would be from Ajmer to Chennai. He informed that he would comply with the order only after getting the clarification on two points raised in the said representation. Thereafter, he did not join the post at Chennai and represented on 01.11.2007 to cancel the transfer order on the ground that his wife was an officer of Haryana Government. On 4.11.2007 (Page 48) he requested second respondent to pay his salary for 3 = years not so far paid to him. It is stated by him that he sent representations dated 05.12.2007, 07.01.2008, 14.05.2008, 18.08.2008, 16.02.2009 and 6.4.2009 for rectification of defects in the said transfer order. He claims that he has not been favoured with any response to his representation. To buttress his arguments that he was working at Ajmer as CIT (appeal) on revocation of his suspension, he enclosed two summons issued to him as CIT (Appeal) Ajmer on 6.11.2008 and 12.02.2009 by the office of CVC. He requested to transfer him to Gurgaon/Faridabad in Haryana or any other nearby place as per Transfer Policy since his wife was an officer of Haryana Government. In the meantime, the applicant filed OA No.2040/2009 in this Tribunal which was decided on 31.07.2009 in following terms:-
Learned counsel for the applicant submits that earlier a transfer order was passed on 11.10.2007 at page 42 whereby the applicant was transferred from revocation of suspension to Chennai. He had represented against the same on 31.10.2007 as per letter at Annexure A-8 and submits that thereafter he did not move on transfer to Chennai but continued at Ajmer where he was actually located. Thereafter a representation at Annexure A-16 was made on 15.06.2009 upon passage of nearly two years during which he continued at Ajmer seeking a transfer to Guargaon or Faridabad (in Haryana) or a near by place for the reason mentioned therein. It is submitted that the applicant has little over two years to retire and he is, therefore anxious that he may not get an opportunity to serve for a reasonable period of time at Gurgaon where his wife is serving with the Government of Haryana unless an early decision is taken on his request. It is, therefore, prayed that the applicant would be satisfied if the respondents were to consider his prayer for transfer and inform him of the decision taken.
2. It is well settled that the Tribunal would not interfere in the matters of transfer, which are an incidence of service and entirely with the domain of the administration. The applicant also seems to have rushed to the Tribunal without awaiting decision. However, I feel that no prejudice would be caused to the respondents, if this OA is disposed of at the admission stage itself without issue of notice asking them to inform the applicant of the decision taken on the representation dated 15.06.2009, treating the OA as an additional representation in that regard, within a period of six weeks from the date of receipt of a certified copy of this order.
Issue Dasti.
4. In compliance of the above order, the respondents have passed a detailed order on 20.11.2009 (Annexure-R1) wherein inter alia the representation of the applicant dated 15.06.2009 was considered and was directed to join the vacant post of CIT (ITSC-II) at Chennai latest by 30.11.2009. He joined the post on 30.11.2009. A corrigendum was issued by the respondents on 11.02.2010 (Page 196) stating therein that the applicants post at Chennai would be CIT (DR) (ITSC)-II. The applicant has sought in this OA the direction to the respondents to give him pay and allowances, 6th CPC arrears of Pay and subsistence period.
5. Between the filing of the OA on 27.07.2009 and final hearing on 29.08.2011, we note that the applicant has filed his rejoinder on 27.01.2010, a rejoinder affidavit on 5.04.2010 to the additional affidavit submitted by the respondents on 05.03.2010. Applicant also responded with a rejoinder on 18.10.2010 to the second additional affidavit filed by the respondents on 8.10.2010.
6. The applicant argued his case in person and very extensively narrated the background of the case and expressed his problems with the respondents. In support of his claim that he has tried to work at Ajmer and later at Chennai but he has not been provided with administrative logistics and has not been disbursed with pay and allowances, he referred to his leave letter, CVC letter and his representations to authorities concerned. As his argument was rather presented in a random manner, not cogently, he was asked to submit his written submission. Having allowed the same, now we have been given a voluminous written submissions where he has cited as many as 17 judgments in support of his contentions. It may be apt for us to note that his written submissions running to 44 pages and the enclosures which are mainly copies of judgment number seventeen. It is seen that his written submission is as big as his OA and we would refer to such of the judgments and facts as may be relevant for adjudicating issues. The applicant submits that respondents are misleading the Tribunal, and are not bringing out complete and full facts and even in the averments in the counter reply certain false averments have been made. He cites the examples that though he was continuing as CIT (Appeal) at Ajmer, in Paras 4.9 and 4.10, it has been mentioned by the respondents that even though he was relieved of his duties by CCIT Jaipur, he was continuing at Ajmer. It has also been stated that the applicant has not officially taken over charge as CIT (Appeal) Ajmer and was not working. As such, the question of relieving Shri Gupta from that post did not arise. He submits that these are contrary statements. He also cites other examples of misleading and perverse averments made by the respondents in their counter affidavit. At Para 4.8, the respondents have submitted that the applicant had refused to join at Chennai. On the other hand, he submits that he had made numerous representations on 7.01.2008, 14.01.2008, 18.01.2008 etc. where he had repeatedly requested for correction of the non compliable transfer order dated 11.10.2007 and to relieve him from the post of CIT (Appeal) Ajmer where he had already joined. He also accuses the respondents that they have made use of defamatory words like treating the applicant as absconder which is contrary to the standard practice followed in the government. He also submits that the respondents have neither denied the points raised by him in the OA or they have evaded the issues raised by him. He submits that as per law such non specific and evasive denials are to be treated as admission and facts pleaded by the applicant for which no further pleadings would be required. Another set of arguments that he advanced is regarding the treatment of his suspension period (14.05.2004 to 11.10.2007). He requests to treat the suspension period as on duty and to grant him full salary and allowances after proper regularisation of the said period as the criminal investigation on the basis of which he was suspended has been admittedly closed. He submits that the subsistence allowance was sanctioned at 50% of the pay on 14.05.2004 and increased to 75% of pay on 6.08.2004. However, the said subsistence allowances are yet to be paid to the applicant. He submits that he has already submitted necessary certificates under FR 53(1) and 53(2) stating clearly that he was not working anywhere all through the said period of suspension. Refuting the contentions raised by the respondents that applicant would be paid his subsistence allowances only after his joining at Chennai was completely arbitrary and colourable exercise of power. In this context, he submits that the non payment of subsistence allowance was to harass the applicant and he placed his reliance on the judgment of Honble Supreme Court in the case of Capt. M. Paul Anthony versus Bharat Gold Mines Ltd. [AIR 1999 SC 1416]. For the reckless inaction of delay in the release of subsistence allowance is malice in law as held in Municipality of Bhiwandi & Nizampur Versus Kailash Sizing Works [AIR 1975 SC 529]. Referring to the misuse of power, misrepresentation and unauthorized action, he submits that these are of malice in law as held by Honble Supreme Court in the case of Vijay Shekhar and Another versus Union of India and Others [(2004) 4 SCC 666]. Non payment of subsistence allowance intentionally would constitute also malice in law as held by Honble Supreme Court in the case of Smt. S. R. Venkatraman versus Union of India & Another [AIR 1979 SC 49]. He also relied on many other judgments in support of his contentions involving administrative lapses on part of the respondents. Permissibility of interest for belated payment and to release full pay and allowances treating the suspension period as duty and the following case laws are relied on:-
1. Sate of Haryana versus Rajinder Sarin [AIR 1972 SC 1008].
2. S. M. Rehman versus The State of Assam and Others [1986 (1) SLJ 162].
3. Tushar Ranjan Mohanty versus Union of India [OA No.2345/2009 decided on 21.01.2010 by CAT, PB, New Delhi].
4. Writ Petition (Civil) No.562/2011 and CM No.1197/2011 (Stay) & Writ Pettiion (Civil) No.1095/2011 decided on 24.08.2011 by Honble Delhi High Court.
5. Hira Lal versus DDA [1995 Lab IC 2196].
6. Girdhari Lal versus Delhi Administration & Others [OA No.1508/1991 decided on 11.05.1993 by CAT, PB, New Delhi].
7. Virender Kumar versus Chief of Army Staff [1994 (2) SCC 303].
8. Devaki Nandan Prasad versus State of Bihar & Others [AIR 1983 SC 1134].
9. Francis John Arahna versus Union of India & Others [OA No.2944/2009 decided on 02.02.2010 by CAT, PB, New Delhi].
10. Amrik Singh & Others versus Union of India & Others [AIR 1980 SC 1447].
11. State of Punjab versus Amar Singh Harika [AIR 1996 SC 1313].
7. Opposing the above grounds, Shri R. N. Singh, learned counsel for the respondents, submits that the applicant is a senior officer in the rank of Commissioner of Income Tax who having been posted at Chennai as CIT (ITAT)-II, has avoided to join deliberately showing flimsy defects in the order and subsequently submitted many representations to be posted to Gurgaon and Faridabad. For a period of more than two years, he managed to stay in an unauthorized manner at Ajmer doing no works. He further drew our attention to the detailed order passed by the respondents on 20.11.2009 covering all the grounds taken by the applicant and directed him to join at Chennai in the vacant post of CIT (ITSC-II). He contends that it is a very sad case that the applicant being senior officer admittedly avoided and evaded his posting at Chennai and forcibly continued to stay at Ajmer. This is dereliction of duty. The respondents could have proceeded against him departmentally for the said action. The applicants suspension was reviewed periodically and was continued. Only after the intervention of Jaipur Bench of the Tribunal, the applicants case was further reviewed and he was reinstated in service. He submits that the order dated 8.08.2007 was an intimation of revocation of suspension and was not a posting order. His posting order was issued on 11.10.2007 as CIT (ITAT) at Chennai. He also drew our attention to the interim order passed by Jaipur bench of the Tribunal to say that respondents were entitled to post him to any place taking into account his grade in the service and accordingly he was posted to Chennai but the applicant did not join immediately there. From 11.10.2007 when the order of his posting to Chennai was issued for more than 2 years he not only evaded but avoided to do work at Chennai and for one pretext or the other he continued to stay at Ajmer. The documents he has placed in the OA to show that he was working in the post of CIT (Appeal) Ajmer were merely eye wash. He actually did not work at Ajmer. It is further submitted that as the applicant has already joined in the post at Chennai on 30.11.2009, the period for which he is entitled to pay and allowances and the subsistence allowance would be regularized and admissible amount would be released to the applicant as soon as he submits his appropriate claims. In view of the above, Shri R. N. Singh submits that the OA needs to be dismissed as the respondents would take appropriate steps to release the payments admissible as per law to the applicant with liberty granted to the respondents to proceed against the applicant as per law for evading and avoiding his joining at Chennai for more than 2 years.
8. Having heard the contentions of the rival parties, we also perused the pleadings as well. The principal issue is whether the entire period from 14.05.2004 up to 29.11.2009 can be treated as on duty and the applicant paid his full pay and allowances?
9. The above issue has two parts viz. (i) suspension period and (ii) post reinstatement period. The applicant has created certain administrative confusion in the second spell i.e. post revocation of suspension and resultant reinstatement including his posting to Chennai. He did not join there. At this stage we may refer to the legally settled position on the issues of postings on transfer or reinstatement.
10. It is trite law that the Government employees like the applicant when posted either on transfer or on reinstatement after revocation of suspension such employees must join first the place of their postings and thereafter submit representations if any. In S.C. Saxena Versus Union of India [2006-9-SCC-583] Honourable Supreme Court dealt a case of a recalcitrant government servant who thought that leave ought to be granted to him as of right, because the Government, in its magnanimity, permitted government servants to accumulate unduly large amount of leave under the Rules. On 6-7-1989 the appellant was transferred by an order from the headquarters at New Delhi to Subsidiary Intelligence Bureau, Tezpur. A relieving order was passed on the same day. According to the respondents, the appellant was relieved on the said day. However, the relieving order was served on him on 28-7-1989. Although, the relieving order was treated as being retrospectively effective from 6-7-1989, nothing really turns on this. The appellant attended work on 7-7-1989 and 8-7-1989 and 9-7-1989 were Saturday and Sunday. He applied for earned leave for 10-7-1989 and 11-7-1989. It is the case of the appellant that he fell ill on 11-7-1989 as a result of which he could not join the office at Tezpur to which he was transferred. He went on submitting leave applications supported by medical certificates from doctors who were not authorised under the applicable disciplinary rules. For the entire period from 11-7-1989 to 20-11-1990, the appellant remained absent and his only reply was that he was sick. On 23-11-1990, the appellant was served with a charge-sheet alleging unauthorised absence from duty against him for the entire period. He replied to the said charge-sheet and his only defence was that he was sick and, therefore, he could not report for duty either at Tezpur or at Amritsar where he had been subsequently transferred. An enquiry was held and by a report dated 25-5-1991, the enquiry officer found that "the charge against the appellant that he has been unauthorisedly absenting himself from duty since 7-7-1989 could not be fully substantiated". In coming to this conclusion, the enquiry officer also noticed that the appellant had been sanctioned earned leave for 10-7-1989 and 11-7-1989 and he did not agree with the appellant's arguments that he was so serious that he could not even go to Dr. Ram Manohar Lohia Hospital, New Delhi for medical examination as directed by the competent authority. The enquiry officer specifically noticed that the appellant was fit enough to go to his own doctors and produced certificates, but was unwilling to produce a certificate from Dr. Ram Manohar Lohia Hospital about his having been ill and having become fit enough to resume duty. The medical certificate issued by Dr. Ram Manohar Lohia Hospital stated that the appellant had "minimal osteoarthritic knee joint with inguinal hernia", but that he was fit enough to join duty anywhere in India. The disciplinary authority was of the view that the long absence of the appellant was without excuse and clearly a misconduct under the disciplinary rules. In the circumstances, the disciplinary authority, by an order dated 27-4-1992, directed that the appellant be visited with the major punishment of compulsory retirement for the misconduct of unauthorised absence with effect from 7-7-1989 and that the period of his absence shall be treated as dies non.He moved this Tribunal impugning the order passed by the disciplinary authority in Original Application No. 2881 of 1997 which was dismissed by the Tribunal by holding that there was no good reason for interfering with the view taken by the enquiry officer and the order made by the disciplinary authority. Being aggrieved , he moved the High Court by his writ petition which was summarily dismissed. Hoping for better luck the applicant approached the Honourable Apex Court and while dismissing the appeal, the following ratio was set:
"In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Manohar , Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorisedly+' remaining absent from duty."
11. The above law was laid by Honble Apex Court in the case of an Upper Division Clerk in the Intelligence Bureau. In the instant OA the applicant is a Commissioner of Income Tax who by virtue of his position and authority has to supervise and control many to maintain discipline in the organization. He was not sick but showing some flimsy ground and terming the order of his posting to Chennai to be in a manner he felt fit to continue at Ajmer and did not join his place of posting at Chennai. This is undoubtedly an illegal and irregular act more so when the applicant - an officer of the rank of Commissioner of Income Tax has whoodwinked the posting order. We would like to mention here that how did the respondents tolerate such an action of the applicant and that too for over more than two years period? We leave this question for the respondents to ponder over.
12. At this stage, the entire facts need to be encapsuled event wise and chronologically. We tabulate the same in the following table:-
14.05.2004 The applicant was placed under suspension 8.08.2007 His suspension was revoked.
11.10.2007 Applicant was posted as CIT (ITAT) at Chennai.
12.10.2007 Applicant joined/reported as CIT (Appeal) at Ajmer.
30.11.2009 He joined at Chennai.
21.04.2010 His LPC was received at Chennai 22.06.2007 Jaipur Bench of this Tribunal passed order in OA NO.219/2007 directing respondents to revoke applicants suspension.
29.10.2007 Applicant received the Communication on his posting order as CIT (ITAT) Chennai.
31.10.2007, 1.11.2007, 4.11.2007, 18.11.2007, 5.12.2007, 7.01.2008, 14.05.2008, 18.08.2008, 16.02.2009 and 6.04.2009 Representations given to various authorities including Chairperson of CBDT.
31.07.2009 This Tribunal passed order in OA No. 2040/ 2009 directing the respondents to decide his representation.
30.11.2009 Applicant joined at Chennai and stated that he has relinquished his charge as CIT (Apeal) Ajmer.
3.12.2009 He reported about his joining at Chennai as CIT (ITSC-II).
20.11.2009 Applicant was posted as CIT (ITSC-II) at Chennai in supercession of the earlier transfer order dated 11.10.2007.
13. The Jaipur Bench of this Tribunal in the interim order dated 22.06.2009 directed to revoke the applicants suspension and post him at any place. The last few lines of the order reads The respondents are directed to revoke the suspension of the applicant and reinstate him in service within a period of 15 days by posting him at any place deemed fit. The respondents revoked his suspension vide order dated 8.08.2007 and he was reinstated to his service as Commissioner of Income Tax and was posted to Chennai vide order dated 11.10.2007. Respondents have complied with the direction of the Tribunal in both letter and spirit. The applicant did not do so. On the contrary, he challenged the above order of the respondent posting him to Chennai on some flimsy ground, and he continued to remain at Ajmer without any proper authorization. Thus, the period from 08.08.2007 up to 11.10.2007 could have been treated as compulsory wait, had the applicant joined the post at Chennai and would have been entitled to full pay and allowances admissible to him. By not joining the place of posting i.e. Chennai, he flouted the posting order dated 11.10.2007 and the direction of the Tribunal as well. Though, he has placed in this OA his correspondence to show that he has applied for casual leave, attended meeting in the CVC Office as CIT (Appeal) Ajmer and some other evidence to muster his argument that after joining on reinstatement at Ajmer as CIT (Appeal) he worked there, we are not convinced of those alibi. The respondents seems to have treated his non-joining at Chennai as the absconding of the applicant. During the period from 12.10.2007 onwards, he has represented to be transferred to Gurgaon/Faridabad as his wife is a Haryana Government employee. There are copies of his such communications in the pleading. His representation about the defective nature of the order of revocation in the sense instead of reinstating him at his pre-suspension place i.e. Ajmer, he was posted to Chennai, was based on his assumptive and presumptive perception. The interim order of the Tribunal being very specific about his posting on reinstatement to his service at any place deemed fit the respondents fully complied with the direction in posting him to Chennai. In our opinion, the said representation dated 31.10.2007 was intended not to join at Chennai and to continue at the place he deemed fit. Pursuant to the direction of the respondents in the letter dated 15.06.2009 setting the target date to join the post at Chennai on/before 30.11.2009, he joined on the said date (30.11.2009). In the above background, the period from 12.10.2007 to 29.11.2009 is unauthorized absence period for which though no order has been passed by the respondents but needs to be passed even now as per law by the competent authority. On the basis of the orders to be passed on the above issue after putting the applicant on notice, the applicants entitlement for pay and allowances for the period from 12.10.2007 to 29.11.2009 would also be considered and determined in the said order by the competent authority. With regard to the period on and after 30.11.2009, when he joined the post of CIT (DR) ITSC (II), the applicant has not raised any issue before the Tribunal for consideration.
14. In respect of the applicants suspension period (14.05.2004 to 07.08.2007) it is noticed that vide order dated 14.05.2004 (Page-29) the applicant was allowed to draw subsistence allowance admissible under FR 53 (1) read with FR 53(2), and in the order dated 6th August, 2004, he was informed that the subsistence allowance was increased by 50% of the sum drawn by him then w.e.f. the expiry of three months from the date of suspension. These two orders read together would connote that the applicants subsistence allowance entitlement would be 50% and 75% for the period 14.05.2004 13.08.2004 and 14.08.2004 07.08.2007 respectively. If the same has not been released to the applicant, the second respondent is directed to pay him the said entitled subsistence amount as per law.
15. Having made the above analysis on facts, we would like to summarize our considered conclusions in the following manner and issue the directions to the respondents to take time bound decision:-
(i) The competent authority to examine the manner in which three distinct periods (Period I, II and III in the table below) need to be treated as per law.
SL. No. Period Nature Remarks I. 14.05.2004 07.08.2007 Period of suspension Subsistence allowance as per law (50% or 75% as the case may be) II. 08.08.2007 11.10.2007 Not joined any place Unauthorised absence III. 12.10.2007 29.11.2009 Posted to Chennai ITAT but not joined there. Applicant claims to have Joined at Ajmer Unauthorised absence IV. 30.11.2009 Onwards AT ITSC-II Chennai Joined the post at Chennai
(ii) The applicant would be entitled to get subsistence allowance admissible to him under FR 53 (1) and FR 53(2) at the rate of 50% for the period from 14.05.2004 to 13.08.2004, and 75% for the period from 14.08.2004 to 07.08.2007.
(iii) The competent authority should consider the facts of the applicants case of remaining unauthorisedly absent by not joining the posting at Chennai and decide about the treatment of two periods viz. 08.08.2007 to 11.10.2007 and 12.10.2007 to 29.11.2009 after putting the applicant on notice to defend himself and only on the basis of such decision to release him the admissible pay and allowances as per law.
(iv) The respondents are directed to examine the applicants entitlement of revised pay and allowances as per 6th CPC and release the admissible amount to him.
(v) The applicant would not be entitled to any interest on the amount which would be released to him on account of the above directions.
16. Before we part with the order, we would like to leave with the second respondent certain observations for him to take action as per law. In the applicants case, we could sense some sort of helplessness on the part of the authorities in CBDT. The applicant is a senior functionary in the CBDT. He disobeyed the posting order issued by the respondent for over two years and no departmental proceeding seems to have been initiated on this count. Information provided in the reply affidavit does not disclose what departmental action has been taken (i) on the alleged misconduct which he committed for which he was then placed under suspension and (ii) the alleged unauthorized absence from 08.08.2007 to 29.11.2009. In case any charge memo has been issued to him on (i) above, what is the result of the disciplinary action. Merely placing the applicant under suspension and revoking the same after more than three years due to intervention of the Tribunal does reveal inadequate supervision of the case which has shown the Department in poor light.
17. Considering the totality of facts and circumstances of the case the Original Application is disposed of in terms of our above orders, directions and observations, leaving the parties to meet their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/