Central Administrative Tribunal - Delhi
Mahanagar Telephone Nigam Limited vs Shri Mangal Singh Arya on 11 October, 2011
Central Administrative Tribunal Principal Bench RA No.266/2011 MA No.2193/2011 in OA No.2898/2010 New Delhi, this the 11th day of October, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) 1. Mahanagar Telephone Nigam Limited 12th Floor Jeevan Bharti Tower 1 Connaught Circus New Delhi-1 Through its Chairman and Managing Director 2. The Director Technical Mahanagar Telephone Nigam Limited Corporate Office 12th Floor, Jeevan Bharti Tower 1 Connaught Circus, New Delhi-1 3. Executive Director Mahanagar Telephone Nigam Limited Khurshid Lal Bhawan, Janpath New Delhi-50 ..Review Applicants. (By Advocate: Shri H K Gangwani) Versus Shri Mangal Singh Arya s/o late Shri Jaghar Singh Senior SDE (GO-18716) R/o C-30/2, Street No.1, Khazuri Khas Delhi-94 ..Review Respondent. (By Advocate: Shri K P Gupta) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
MA No.2193/2011 For the reasons given in the MA, the delay of 33 days to file the RA No.266/2011 in the OA No.28982010 decided on 24.03.2011, is condoned.
RA No.266/20112. The present Review Application has been moved by the respondents in the OA with the prayer to allow the RA in reviewing/modifying/recalling the orders passed by the Tribunal on 24.03.2011 in the OA. For proper appreciation of the prayer in the RA, the operative part of the said order is extracted below:-
6. We have considered the rival contentions of the parties and perused the material placed on record.
7. As far as the reliance placed by the applicant on Rule 7 (b) of the Mahanagar Telephone Nigam Limited Conduct, Discipline & Appeal Rules, 1998 is concerned, the said rule itself provides that the suspension for one year would cause hardship only when the same is continued without any charges being filed in the Court of Law. In the present case, as per applicants own admission, the charge sheet has been filed against him in the Court. The said rule also provides that in case the employee is accused of serious crime, the Review Committee may recommend continuation of suspension of the employee concerned. In the present case, the applicant is accused of an offence under Section 7 of Prevention of Corruption Act, 1988, which, of course, is a serious crime. Thus, the contention of the applicant that in terms of Rule 7 (b) of the Rules 1998 his suspension is liable to be revoked cannot be accepted.
8. As far as the contention of the applicant regarding enhancement of subsistence allowance is concerned, he is right in contending that on suspension period being in excess of 90 days the authority, which made the suspension order, should have varied his subsistence allowance and should have increased the same to 75%, in case of prolonging of suspension was not directly attributable to the applicant. The contention of the applicant that no subsistence allowance was payable to the applicant till he was granted bail is out of context to the issue of enhancement of subsistence allowance. In the present case, it is not so that the applicant is not granted subsistence allowance and he is claiming the same.
9. The issue to be determined is that when the applicant is granted bail as well as the subsistence allowance, whether on expiry of 90 days from the date of suspension, his subsistence allowance should have been varied to 75% of basic pay and allowances or not?
10. However, in the present case, the counsel for the applicant submits that his client would be satisfied if his subsistence allowance is varied from expiry of three months from the date of grant of bail, i.e., 4.4.2009. We find no reason to reject such contention and submission made by the counsel for the applicant.
11. The reliance placed by the counsel for the applicant on the decision of this Tribunal in H.S. Ramakrishna v. The Commissioner of Central Excise & another, 2002 (3) AISLJ 440 has no application to the facts and circumstances of the present case, as the said decision is with reference to an employee of Central Excise (Training), whose suspension was regulated by Rule 10 of CCS (CCA) Rules, 1965, whereas in the present case, the Mahanagar Telephone Nigam Limited have its own rules to regulate the suspension of its employees.
12. For the aforementioned reasoned, we decline to interfere with the order of suspension of the applicant and continuance of his suspension. However, on the issue of enhancement of subsistence allowance, we direct the respondents to enhance the subsistence allowance of the applicant from the expiry of three months from 4.4.2009, i.e., the date when he was granted bail in RC No.7/2009.
12. OA disposed of. No costs.
3. We heard Shri H. K. Gangwani, learned Sr. Central Government Counsel for the review applicant and Shri S. K. Gupta, learned counsel for the review respondent.
4. Review of the above order has been sought by the Union of India mainly on two grounds. Shri Gangwani would contend that the order passed by the competent authority on 26.06.2010 dealing with the grant of increased subsistence allowance equal to 50% of the subsistence allowance originally sanctioned, has not quashed the said order by the Tribunal as the review respondent has not prayed for the said relief. The second limb of his argument is that the applicant has sought the enhancement of the subsistence allowance from 50% to 75% with effect from 04.05.2009 but the enhancement has been granted by the Tribunal w.e.f. 04.04.2009. He, therefore, prays that necessary modification to the order of the Tribunal is necessary.
5. Shri S. K. Gupta, learned counsel appearing for the review respondent would submit that the review applicants have not yet complied with the orders of the Tribunal and differential subsistence allowances have not yet been paid to him. He contends that the Tribunal has allowed the prayer for enhancement of subsistence allowance from 50% to 75% w.e.f. 04.04.2009, which would imply that the order passed by the review respondents on 26.06.2010 should have been withdrawn by them to grant him the enhanced subsistence allowance. Further, he submits that Rule 21 (3) of MTNL (Conduct, Discipline, and Appeal) Rules, 1998 would be applicable in case of the applicant to get the enhanced subsistence allowance with effect from 04.04.2009.
6. Admittedly, the review respondent was suspended on 03.02.2009 which was extended periodically vide letters dated 02.05.2009, 30.10.2009 and 26.04.2010. He was granted 50% subsistence allowance w.e..f 04.04.2009 when he was granted bail by the Trial Court. On 19.02.2010, when his suspension was reviewed, the subsistence allowance was kept at 50%. However, on 26.06.2010, further review was conducted and subsistence allowance was increased to 75%.
7. Having carefully considered the contentions of the parties and the facts we referred to the MTNL Rules also. The relevant rule in the subject being Rule 21 (3), we reproduce the same below:
(3) If an employee is arrested by the Police on a criminal charge and bail is not granted, no subsistence allowance is payable. On grant of bail, if the competent authority decides to continue the suspension, the employee shall be entitled to subsistence allowance from the date he is granted bail.
8. In view of the above Rules position, we feel that the operative part of the order needs modification and we order the same in following terms:-
12. For the aforementioned reasons, we decline to interfere with the order of suspension of the applicant and continuance of his suspension. However, he will be entitled to the subsistence allowance with effect from 04.04.2009, the date on which he has been granted bail in RC No.7/2009. The subsistence allowance admissible to him will be 50% w.e.f. 04.04.2009 and 75% with effect from the expiry of 90 days from 04.04.2009. In the result, the respondents are directed to withdraw the order dated 26.06.2010 in which the enhanced subsistence allowance has been declined. Consequently, he would be entitled to the difference in the subsistence allowance. The above directions shall be implemented as expeditiously as possible but preferably within 9 weeks from today.
13. The OA is disposed of in above terms. No costs.
9. In view of the above modification ordered by us to the order dated 24.03.2011 in the OA, the instant RA is disposed of. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/