Central Administrative Tribunal - Lucknow
Mahesh Kumar Rai vs Union Of India on 30 August, 2024
CAT,Lucknow Bench OA No. 332/00271/2021 Mahesh Kumar Rai Vs. U.O.I..&Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00271/2021
Dated this 30thday of August 2024
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Mahesh Kumar Rai, aged about 59 years, S/o late Ram Nath Rai, R/o
538 Tulsi Puram, Triveni Nagar East, Sitapur Road, Lucknow.
.....Applicant
By Advocate: Shri Dharmendra Awasthi
VERSUS
1. Union of India, through the Secretary, Ministry of Communication,
Department of Posts, Government of India, Dak Bhawan, New
Delhi.
2. Postmaster General, Headquarter Region, Lucknow.
3. Senior Superintendent of Posts Offices, Lucknow Division,
Lucknow.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER(ORAL)
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case, the applicant has sought the following reliefs:
"(a) Issue order/direction/in the nature of certiorari quashing the order dated 16.09.2020, contained in Annexure No. 1, passed by the respondent No. 3 by means of which mercy appeal/revision petition of the applicant for enhance of subsistence allowance has been rejected with all consequential benefits. "
(b) Issue order/direction/in the nature of mandamus commanding the respondents to enhance the subsistence allowance of the applicant to the tune of 75% of the last salary drawn after completion of three months period from the date of suspension order till the date of compulsory retirement along with interest @ 8% per annum from the date of its due till the date of actual payment.
(c) Issue such other order/direction which may be deemed just and proper in the circumstances of the case.
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(d) Allow the Original Application with cost against the respondents in view of the facts and circumstances, legal provisions and grounds raised in the application."
2. The facts of the case are that the applicant, while working as Sub Post Master (SPM) under the respondents, was suspended vide order dated 28.01.2019 under rule 10(1) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 [CCS(CCA) Rules, hereinafter]. He was proceeded against departmentally under rule 14 of CCS(CCA) Rules and punished with the penalty of compulsory retirement from service by the respondents vide order dated 10.07.2020. The applicant's representation to enhance his subsistence allowance was rejected vide order dated 16.09.2020. Aggrieved, the applicant has preferred this OA.
3. The applicant contends that he is entitled to get 75% of the last salary drawn after the first three months of suspension as the delay in completion of disciplinary proceedings instituted against him is not directly attributable to his conduct. However, the respondents have passed the impugned non-speaking order dated 16.09.2020 without assigning any reason rejecting his representation.
4. The respondents state that the applicant was found involved in a fraud while working as SPM Daliganj, Lucknow and placed under suspension vide order dated 28.01.2019. Disciplinary proceedings were initiated against him and penalty of compulsory retirement from service awarded to him vide order dated 10.07.2020. The applicant's suspension was reviewed by the prescribed committee within the prescribed time limit on 26.04.2019, 23.07.2019, 24.10.2019, 21.01.2020 and 17.04.2020. During the suspension period, subsistence allowance was reviewed on 26.04.2019 by SSPOs, Lucknow Division in terms with provisions of FR-53(1)(ii) read with GID 3(c) below rule FR- 53 and it was ordered that there shall be no increase or decrease in the Page 2 of 4 CAT,Lucknow Bench OA No. 332/00271/2021 Mahesh Kumar Rai Vs. U.O.I..&Ors subsistence allowance being paid to the applicant due to grave misconduct of his part. The applicant then preferred a mercy appeal/revision petition dated 27.05.2020 which was rejected vide order dated 31.07.2020 whereby it was ordered that the subsistence allowance paid to the applicant was found justified.
5. Heard both the parties.
6.1 A perusal of FR 53 reveals the following position in regard to payment of subsistence allowance during suspension:
"53 (1) A Government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments, namely :-
(i)....
(ii) In the case of any other Government servant -
(a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay and in addition, dearness allowance, if admissible on the basis of such leave salary:
Provided that where the period of suspension exceeds three months,the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:
(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 percent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant;
(ii) the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 percent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the Government servant;"
(emphasis supplied) It is evident from FR 53(1)(ii)(a) quoted above that if the period of suspension exceeds three months, the Government servant is entitled to increase in subsistence allowance by upto 50% if, in the opinion of the competent authority, the period of suspension has been prolonged for reasons to be recorded in writing which are not directly attributable to the Government servant. In other words, the competent authority is Page 3 of 4 CAT,Lucknow Bench OA No. 332/00271/2021 Mahesh Kumar Rai Vs. U.O.I..&Ors required to record in writing the reasons for prolongation of suspension, form an opinion whether such prolongation of suspension is directly attributable to the Government servant or not, and increase the subsistence allowance if the prolongation of suspension is not directly attributable to the Government servant.
6.2 Coming to the impugned order dated 16.09.2020, it is noted that the applicant's appeal against suspension and for enhancement of subsistence allowance has been dealt with by the respondents in the following manner:
"Sub: Your mercy appeal/revision petition dated 27.05.2020. In pursuance to R.O. letter no. RPHQ/Vig./Suspension Petition/01/ 2020 dtd. 31.07.2020. It is intimated that your mercy appeal has been considered by the competent authority and ordered that the subsistence allowance already paid to you appears justified. Hence no modification is required."
(emphasis supplied) It is observed that the order dated 16.09.2020 quoted above does not enumerate the reasons for prolongation of the applicant's suspension beyond three months and also does not determine whether such prolongation was directly attributable to the applicant.
7. In view of the foregoing, the order dated 16.09.2020 is quashed and set aside and the respondents/competent authority are directed to consider the applicant's appeal dated 27.05.2020 afresh and pass a reasoned and speaking order in terms of provisions of FR 53 within a period of two months from the date of receipt of certified copy of this order. The OA is disposed of accordingly. Pending MAs, if any, also stand disposed of. Parties shall bear their own costs.
(Pankaj Kumar) Member (A) vidya Page 4 of 4