Central Administrative Tribunal - Allahabad
Mukesh Meena vs Revenue Cbic on 17 April, 2023
O.A.163/2022
(Reserved on 11.4.2023)
Central Administrative Tribunal, Allahabad
****
Original Application No.163 of 2022
This the 17th Day of April, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble DR. Sanjiv Kumar, Member (A)
Mukesh Meena aged about 44 years son Sri Patram Meena,
Deputy Commissioner , CGST c/o Commissioner of Central Goods
and Service Tax, Department of Revenue, Ministry of Finance,
117/3, Sanjay Place, Agra-282002.
(currently residing at Qu. No. 19, Type 3- Central Excise Colony,
Vaishali, Sector 15, Agra -282007, Uttar Pradesh.
......Applicant
By Advocate: Sri Amit Kumar Prasad for Sri Tushal Ranjan
Mohanty
Versus
1. Union of India through the Secretary, Department of
Revenue, Ministry of Finance, North Block, New Delhi.
2. The Chairperson, Central Board of Indirect Taxes and
Customs (CBIC) , Department of Revenue, Ministry of
Finance, North Block, New Delhi-110001.
...Respondents
By Advocate: Shri M.K. Sharma
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) The applicant has filed the present O.A. under Section 19 of the Administrative Tribunals Act, 1985 with the following prayer:-
8.1 to allow the present application.
8.2 to quash and set aside the paragraph 7 of the impugned order of revocation of suspension dated 6.7.2021 of the applicant 8.3 to declare the period spend by the applicant on suspension (30.4.2018 to 5.7.2021) should be treated as duty for all purposes.Page 1 of 16 O.A.163/2022
8.4 to direct the respondents to pay the applicant full salary and all allowances for the periods spent by the applicant on suspension (30.4.2018 to 5.7.2021) within a specified period 8.5 to direct the respondents Ministry to pay the applicant interest @ 18% per annum , compounded monthly on the arrears of pay and allowances that is due to the applicant from the date the amount was due.
8.6 to grant all consequential benefits to the applicant as permissible in law 8.7 to direct the respondents to pay suitable compensation to the applicant as this Hon'ble Tribunal deems fit and proper in the circumstances of the case 8.8 to issue any such and further order /direction this Hon'ble Tribunal deems fit and proper in the circumstances of the case 8.9 to allow the exemplary cost of the application.
2. The facts in brief giving rise to the present O.A. are that the applicant is a direct recruit officer of 2009 batch of Indian Revenue Service (Customs and Central Excise). He was promoted as Deputy Secretary vide order dated 18.7.2014. Vide order dated 11.5.2018, he was placed under suspension w.e.f. 30.4.2018 to 5.5.2018. The suspension of the applicant was extended from time to time vide orders dated 23.7.2018,22.1.2019, 22.7.2019 and lastly on 13.1.2021, on each occasion for a period of 180 days. Applicant filed O.A. No. 3327 of 2019 before the Principal Bench of this Tribunal. Batch mate of the applicant Sri Sandeep Yadav, who was also involved in the same case as the applicant, had filed O.A. No. 617/2018 before Cuttack Bench of this Tribunal, which was allowed vide order dated 31.1.2020. Respondents challenged the order dated 31.1.2020 before Hon'ble High Court of Orissa at Cuttack and vide judgment dated 31.7.2020, the Hon'ble High Court modified the judgment to the extent that the suspension of the applicant was set aside with effect from 22.7.2019 and not after the initial ninety days. Respondents filed SLP before Hon'ble Supreme court which was dismissed vide order dated 18.1.2021. A major penalty charge sheet dated 9.12.2020 was issued to the Page 2 of 16 O.A.163/2022 applicant. O.A. No. 3327/2019 filed by the applicant in Principal Bench was disposed off vide order dater 14.12.2021, directing that in its next review, the committee should take the fact mentioned above in case of the applicant and pass appropriate orders. There shall be no order as to costs. The order dated 14.12.2021 was challenged before Hon'ble High Court of Delhi. Vide judgment dated 17.5.2021 Hon'ble Delhi High Court directed the respondents to consider the case of the applicant. The suspension of the applicant was revoked vide order dated 6.7.2021, whereas the suspension of the batch mate of applicant Sri Sandeep Yadav was revoked w.e.f. 24.7.2019.
3. Per contra, learned counsel for the respondents filed counter reply, stating therein that applicant and others were arrested by the CBI on 30.4.2018 in a criminal case and produced before the Special Judge, Mumbai on 1.5.2018 and applicant and some other were remanded to police custody upto 4.5.2018, where Sri Sandeep Yadav was sent to judicial custody till 14.5.2018. Since the period of custody of four Deputy Commissioners had exceeded 48 hours, they were placed under deemed suspension vide order dated 11.5.2018 effective from date of their arrest by CBI i.e. on 30.4.2018. Suspension was extended vide Board's letter dated 23.7.2018, 22.1.2019, 22.7.2019, 15.1.2020, 17.7.2020 and 13.1.2021. The suspension of the applicant was revoked vide order dated 6.7.2021. In regard to disciplinary proceedings, charge memorandum dated 9.12.2020 has been issued to the applicant. Prosecution sanction has been granted to CBI vide sanction order dated 27.2.2022 and charge sheet has been filed by CBI in the court on 28.8.2019 against the applicant. It is further stated that disciplinary and criminal proceedings are still pending against the applicant. The treatment of suspension period shall be reviewed on its own motion after the conclusion of disciplinary/ criminal proceedings in terms of Rule 54-B (6). It is further stated that in reply to para 4.27 of the O.A., in which applicant referred the various judgments and stated that on the basis of FR 54 B when suspension is revoked at a time and no departmental Page 3 of 16 O.A.163/2022 proceeding has commenced, there would be no reason to deprive the Govt. servant of his full pay and allowances for the period of his suspension on his reinstatement, it is stated that facts and circumstances of the case cited by the applicant are different from the case of applicant. The charge memorandum was issued to the applicant on 9.12.2020 and suspension revocation order was issued on 6.7.202. In the case cited by the applicant, no departmental proceedings were commenced when suspension was revoked whereas in the case of applicant, departmental proceedings had already commenced when his suspension was revoked.
4. Heard the learned counsel for the parties.
5. Submission of the learned counsel for the applicant is that period of suspension of the applicant from 30.4.2018 to 5.7.2021 has to be treated as on duty for all purposes, as the suspension of the applicant has been revoked but no order regarding treatment of period of suspension was passed. It is further submitted that para 7 of the order of revocation is in violation of provision of sub Rule (1) of FR 54-B. It is further submitted that period of suspension of the applicant has to be treated as on duty for all purposes and applicant would be entitled to full salary and allowances for the period of suspension in view of law laid down by the Hon'ble Delhi High Court in the case of Hira Lal Vs. DDA, 1995 IIAD Delhi 466. It is further argued that revocation of suspension order without issuing orders regarding treatment of the period of suspension is in violation of the judgment dated 14.12.2010 passed by Hon'ble Delhi High Court in W.P. (C ) No. 916/2007 (Vijay Kumar Aggrawal Vs. UOI) and Writ Petition (Civil) No. 6138 of 2020 (T.C. Sivakumar Vs. UOI and others).
6. Submission of the learned counsel for respondents is that applicant was arrested by the CBI on 30.4.2018 in a criminal case and remanded to police custody upto 4.5.2018 for more than 48 hours, hence he was placed under deemed suspension vide order dated 11.5.2018 effective from date of his arrest by CBI i.e. on 30.4.2018. His suspension was extended vide Board's letter dated Page 4 of 16 O.A.163/2022 23.7.2018, 22.1.2019, 22.7.2019, 15.1.2020, 17.7.2020 and 13.1.2021 and suspension was revoked vide order dated 6.7.2021. Charge memorandum in disciplinary proceeding was issued on 9.12.2020. Charge sheet has been filed by CBI in the court on 28.8.2019 against the applicant. It is further submitted that since the disciplinary and criminal proceedings were pending against the applicant on the date of revocation of suspension, the treatment of suspension period shall be reviewed on its own motion after the conclusion of disciplinary/ criminal proceedings in terms of Rule 54-B (6). It is further argued that in reply to para 4.27 of the O.A., in which applicant has referred the various judgments and the provision of FR 54 B that when suspension is revoked and at that time no departmental proceeding has commenced, there would be no reason to deprive the Govt. servant of his full pay and allowances for the period of his suspension on his reinstatement, it is stated that facts and circumstances of the case law by the applicant are different from the case of applicant. The charge memorandum was issued to the applicant on 9.12.2020 and revocation order was issued on 6.7.2021. In the case law cited by the applicant, no departmental proceedings were commenced when suspension was revoked therefore, case laws relied upon by the applicant are not applicable in the present matter as in the instant case, departmental proceedings had already been commenced when his suspension was revoked.
7. We have considered the rival submissions of the parties and have gone through the entire record.
8. The crux of the issue involved in the matter is that whether the treatment of suspension period of the applicant will be governed by the provision of FR 54 (B) (1) or Rule 54 -B(6). For ready reference, relevant portion of F.R. 54-B is reproduced below:-
"F.R. 54-B: (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority Page 5 of 16 O.A.163/2022 competent to order reinstatement shall consider and make a specific order
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. (3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-
rule (8) be paid the full pay and allowances to which he would .have been entitled, had he not been suspended:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.Page 6 of 16 O.A.163/2022
4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.
(5) In cases other than those falling under sub-rules (2) and (3) the Government servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice. (6) Where suspension is revoked pending finalization of the disciplinary or the Court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be. (7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that, if the Government servant so desires such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
Note: The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of
(a) extraordinary leave in excess of three months in the case of temporary Government servant; and Page 7 of 16 O.A.163/2022
(b) leave of any kind in excess of five years in the case of permanent or quasi permanent Government servant.
8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. (9) The amount determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53. "
9. From perusal of record, it is evident that applicant is relying on Rule FR 54 -B(1), whereas respondents is relying on Rule 54 - B (6) as quoted above.
10. In the instant case, on the date of revocation of suspension order i.e. on 5.7.2021, charge memorandum had already been issued on 9.12.2000 (Annexure CA-1) and CBI had also filed the charge sheet in the Court on 28.8.2019 against the applicant. Prosecution sanction has been granted to CBI vide sanction order dated 27.2.2022. Therefore, it is clear that on the date of revocation of suspension order, disciplinary and criminal proceedings both were pending against the applicant. Rule 54-B (6) clearly provides that where suspension is revoked pending finalization of the disciplinary or the Court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be.
11. In the case of Hira Lal Vs DDA (supra), Hon'ble Delhi High Court has observed as under
"(9) In the instant case sub-rules .(3) and (5) are not applicable as suspension of the petitioner was not revoked after finalisation of the disciplinary proceedings but was revoked even before the initiation of disciplinary proceedings. According to sub-rule (6) when suspension is revoked before finalisation of a pending disciplinary or court proceeding any decision taken under sub-rule (1) is subject to review by the competent authority after conclusion of the Page 8 of 16 O.A.163/2022 proceeding according to sub-rule (3) or sub-rule (5) depending upon the out come of the enquiry. But even this Rule is not applicable to the case of the petitioner as the same comes into operation when suspension is revoked pending finalisation of disciplinary proceedings. Admittedly in the present case suspension was revoked when disciplinary proceedings were not pending. The service of the charge sheet on the petitioner and the departmental proceedings are events, which followed after about a year and a half of the revocation of suspension of the petitioner.
All this impels me to hold that the order of the Commissioner (Slum & J.J. Wing) dated February 26, 1991 to the extent it deprives the petitioner of his pay and allowances during the period when he was under suspension, was illegal. I should, however, not be understood as holding that in every case when an order for payment of pay and allowances is not passed as soon as the order of reinstatement is made, the employee would be entitled to full pay and allowances during the period of suspension. Each case must depend upon its own facts and circumstances. I would also like to clarify that I am taking this view having regard to the peculiar facts and circumstances of the instant case namely that before his reinstatement; the petitioner remained suspended for more than six years without the disciplinary proceedings having been commenced against him. The provisional decision to deny him the salary during the period of his suspension was taken after eighteen months of the order of reinstatement. Therefore, the competent authority acted illegally in directing that the petitioner will not be paid fall pay and allowances for the period of suspension till the disciplinary proceedings are finalised.
10. In view of the aforesaid discussion, the writ petition succeeds and the rule is made absolute. The respondents are directed to make full payment of pay and allowances to the petitioner to which he would have been entitled for the period between September 1, 1984 and July 25, .1989, had he not been suspended, after deducting the subsistence allowance received by him during the period of suspension. The payment to the petitioner will, however, be without prejudice to the disciplinary enquiry which has been initiated against him.
12. In the case of Vijay Kumar Agarwal Vs. UOI and another Petition for Special Leave (Civil) No. 6393 of 2012 Hon'ble Supreme Court has held as under:-
"The High Court while dealing with this writ petition took the view that in case order revoking the suspension did not deal with the suspension period or payment of the salary for suspension period, order revoking suspension cannot be treated as void or non est. The only effect thereof would be Page 9 of 16 O.A.163/2022 that the competent authority is precluded from exercising its power under FR 54B and the legal position was that if while revoking the suspension or within a reasonable time thereof no order is passed pertaining to pay and allowances for the period of suspension, the authority is denuded from passing such an order. The necessary consequences thereof would be that the Government servant, in such a situation, is entitled to full salary for the period he remained under suspension. Therefore, High Court held that the petitioner was entitled to full pay and allowances for the period he remained under suspension and in the present case, the Supreme Court had already passed the order for grant of full salary for the period May 01, 1988 to May 13, 1996 and this amount had also been received by the petitioner though initially he had refused to accept the same when it was tendered to him in the Court. Moreover, the State of Maharashtra had not revoked the suspension on its own but to facilitate petitioner's inter- cadre transfer from Maharashtra cadre to Punjab cadre and, therefore, the order of revocation of suspension was not in exercise of power to revoke the suspension on the ground that the petitioner was no longer required to kept under suspension and these peculiar circumstances were not kept in mind by the Tribunal.
According to us, the aforesaid approach of the High Court, under the given circumstances, is without blemish. The High Court has relied upon certain judgments of this Court including the decision in the case of Basant Ram Jaiswal v. Area Manager (North) MTNL Bombay[1] which held that in such a situation, the competent authority cannot exercise the power under FR 54B.
When the order of suspension is revoked and the suspended employee is asked to join the duty, he is required to do so. How the period of suspension is to be treated is another aspect. At the most, such an employee would be entitled to full salary during the suspension period if no order is passed as to how the suspension period would be governed. That would not mean that order revoking suspension itself becomes bad in law. It is pertinent to mention that even the Tribunal did not say that order revoking suspension was bad in law (In fact that part of the order was favourable to the petitioner). What it held was that in terms of Rule 5(b), the Government should have also decided how the period of suspension is to be treated and, therefore, directed the Government to pass necessary order to that effect.
An employee who is suspended generally feels aggrieved by such suspension order and would like his suspension to be revoked. Curiously, in the present case, when such an order was passed in the case of the petitioner, instead of joining the duties, he started questioning the validity of the order of revocation on hyper-technical grounds claiming that he Page 10 of 16 O.A.163/2022 would not join the duties unless his period of suspension is also dealt with. This speaks volumes about the conduct of the petitioner depicting that he was not interested in joining the duties. Had the petitioner joined the duties, it would have even facilitated his change of cadre as well by allowing him Punjab cadre. He did not allow it to happen and he himself is responsible for this state of affair.
Otherwise also, in any case, we feel that once the entire salary for suspension period is received by the petitioner, there was no question of making any grievance in respect of order revoking suspension.
Insofar as writ petition No.2768/2007 is concerned, this pertain to challenge to the second as well as third chargesheets and orders dated June 07, 1996 by which he was directed to report for duty as Deputy Secretary in the Social Welfare Department. The High Court dismissed this writ petition with the reason that the petitioner had made repeated attempts and re- agitated this issue time and again. We do not find any fault in dismissing this writ petition as well.
With this, we come to the real issue that is agitated by the petitioner and, in fact, no grievance was made by the petitioner insofar as dismissal of the aforesaid writ petitions are concerned. The petitioner is claiming pay and allowances from June 05, 1996 onwards till date. This was also one of the prayers in OA No.1714/2003 before the Tribunal. The Tribunal had, however, rejected this prayer in the following manner: "26. As regards claim of the applicant for grant of pay and allowances from 5.6.1996 is concerned, as the applicant, without express permission of the competent authority, has failed to bring on record any credible material showing that he has joined the post of Deputy Secretary in Social Welfare Department, having not worked on the post by the applicant, at present he is not entitled for the relief of grant of salary for the aforesaid period. However, the aforesaid period shall remain subject to pending finalisation of the disciplinary proceedings and on culmination, the law shall take its own course. However, we observe that in the event, the applicant joins the post of Deputy Secretary in the Social Welfare Department, respondents shall start paying him the salary as per rules. We, at present, are not inclined to allow the prayer of the applicant for grant of salary for the period from 1996 till date." Significantly, the petitioner did not challenge this part of the order. As pointed out above, though he filed two review petitions seeking review of that portion of the order by which Tribunal had given liberty to the State Government to pass fresh order of suspension but did not even ask for review of the order denying him salary for the period after June 05, 1996. The order of the Tribunal was not even Page 11 of 16 O.A.163/2022 challenged before the High Court and, thus, it became final. That apart, the petitioner never joined the duties and, therefore, he cannot claim salary on the principle of 'no work no pay' as well.
We may point out that the claim for salary for the period after June 05, 1996 till date is on the ground that the order revoking the suspension itself was illegal and, therefore, he was not supposed to join the duty. It is stated at the cost of repetition that the petitioner could have claimed salary for the period of suspension but that was no ground not to join the duties once the suspension order was revoked. The excuse for not joining the duties has also been negatived. It may be recalled in this behalf that he was asked to join the duties as Deputy Secretary and his plea was that he was asked to join inferior post. His OA in this behalf was also dismissed.
As a result, present special leave petition is dismissed in limine.
13. In the case of T.C. Sivakumar Vs. UOI and others (supra), Hon'ble Delhi High Court in Para No. 2, 3, 11, 19 to 21 and 24 to 25 has observed as under:-
2. The petitioner was appointed as a Lecturer in the respondent No.4 Institute namely the National Institute for the Empowerment of Persons with Intellectual Disabilities ('NIEPD', for short) on January 08, 1990. On November 20, 2014, he was suspended. On February 10, 2015, his suspension was extended. The suspension was again extended on August 06, 2015, November 09, 2015 respectively. While under suspension, a charge sheet was issued to the petitioner on December 22, 2015. The suspension was finally revoked on May 30, 2016.
3. Pursuant to the charge sheet, as referred to above, the inquiry report was submitted by the Inquiry Officer, wherein the petitioner was not found guilty. The Disciplinary Authority ('DA', for short) after considering the inquiry report, gave a disagreement note on the inquiry report to the petitioner in November 2018. The petitioner submitted his response to the disagreement note. In April 2019, a penalty order was passed by the Authority under the signatures of the Joint Secretary to the Government of India ('GOI', for short), whereby the pay of the petitioner was reduced from ₹1,51,400/- to ₹1,47,000/- for a period of one year with immediate effect, with a further direction that he will not earn increments of pay during the period of such reduction and on the expiry of such period the reduction will have the effect of postponing his future increments of pay.Page 12 of 16 O.A.163/2022
11. Having heard the learned counsel for the parties, the issue which falls for consideration is whether the respondents are justified in issuing office orders dated May 29, 2020, and June 01, 2020, granting provisional pension to the petitioner. That apart, the issue which also arises for consideration is whether the disagreement note and the penalty order issued are just and proper and the period of suspension of the petitioner between the period November 20, 2014, to May 30, 2016, need to be considered as a 'period on duty' and the petitioner is entitled to full salary during that period.
19. Insofar as the plea of Mr. Mohanty that the period of suspension needs to be treated as on duty and the petitioner is entitled to the full salary for the period November 20, 2014, till May 30, 2016, is concerned, Mr. Mohanty is justified in advancing the plea that the Authority, while revoking the suspension order, did not decide, in what manner the suspension period shall be treated. Even assuming that on the date when the suspension was revoked, the disciplinary proceedings were not complete, even then I find that the DA while passing the final order, has also not decided, in what manner the suspension period shall be treated. In fact, till date, there is no order in that regard. The Division Bench of this Court in the case of Vijay Kumar Aggarwal (supra) has by referring to FR 54-B has held that the law is that if while revoking the suspension or within a reasonable time thereof, no order is passed pertaining to pay and allowances for the period of suspension, the Authority is denuded from passing such order and the inevitable result would be, a government servant would be entitled to full salary for the period he remained under suspension. The relevant paragraph is reproduced as under: -
"25. We note that Rule 5 B of the All India Services (Discipline & Appeal) Rules 1969 is pari materia with FR 54 B and in the decisions reported as 1993(25) ATC 321 Girdhari Lal vs. Delhi Administration & Ors, 1993 (24) ATC 641 Basant Ram Jaiswal vs. Area Manager (North) MTNL Bombay, 1996 (3) (Supp.) LLJ 855 Hira Lal vs. DDA Signature Not Verified Digitally Signed By:ASHEESH Signing Date:15.11.2021 14:24:45 & Ors. and AIR 1987 SC 2257 O.P.Gupta vs. UOI & Ors. it has been held that while revoking the suspension it is the duty of the competent authority to pass an order regarding pay and allowances for the period a government servant remained under suspension and that the composite order has to be a part of the same transaction having two parts and that the power to revoke the suspension cannot be exercised in isolation of the power to pass an order regarding pay and allowances. But, the said decisions do not hold that if no order pertaining to pay and allowances is passed, an order revoking suspension is void and non-est. As clarified by the Page 13 of 16 O.A.163/2022 Tribunal in Basant Ram Jaiswal's case (supra), in such situation the competent authority cannot exercise the power under FR 54 B. Thus, the law is that if while revoking the suspension or within a reasonable time thereof, no order is passed pertaining to pay and allowances for the period of suspension, the authority is denuded from passing such order and the inevitable result would be the Government servant being entitled to the fully salary for the period he remained under suspension."
20. The aforesaid conclusion of the Division Bench of this Court has been upheld by the Supreme Court in SLP No. 6393/2012 titled Vijay Kumar Agarwal (supra) by stating in paragraph 22 as under:-
"22) According to us, the aforesaid approach of the High Court, under the given circumstances, is without blemish.
The High Court has relied upon certain judgments of this Court including the decision in the case of Basant Ram Jaiswal v. Area Manager (North) MTNL Bombay, 1996 (3) Supp. LLJ 855, which held that in such a situation, the competent authority cannot exercise the power under FR 54B."
21. In view of the above, the plea of Mr. Joshi that as the disciplinary proceedings have ended with a major penalty, the treatment of period of suspension as on duty does not arise unless otherwise specified by the DA, is unmerited being contrary to law as noted above.
24. The writ petition is required to be allowed partially. The orders dated May 29, 2020, and June 01, 2020, are quashed. The petitioner shall be entitled to the retiral benefits including pension etc. The petitioner shall also be entitled to full salary for the period of suspension between the periods November 20, 2014, to May 13, 2016. The other prayers of the petitioner are rejected. The benefits in terms of this order shall be released to the petitioner within a period of three months from today with interest computed @ 6% per annum.
25. It must be stated, this Court has only considered the issues which fell for consideration in this petition. That apart Mr. Mohanty has referred and relied upon some other judgments in his pleadings suffice to state that the same have not been referred to in view of limited submissions made by him as noted above. No costs.
14. In the case of Hira Lal Vs. DDA (supra), the suspension was revoked when disciplinary proceedings were not pending whereas in the instant case when the suspension was revoked, the disciplinary and criminal proceedings, both were pending against Page 14 of 16 O.A.163/2022 the applicant, hence this case will not be applicable to the facts of the present matter.
15. In the case of Vijay Kumar Agarwal Vs. UOI and another (supra), vide interim order dated 2nd November, 1988, Hon'ble High Court in Writ Petition stayed the proceedings in the charge sheet which was served upon the petitioner on 6 July, 1988, whereas in the instant case when the suspension was revoked, the disciplinary and criminal proceedings, both were pending against the applicant, hence this case will not be applicable to the applicant to the facts of the present matter.
16. In the case of T.C. Sivakumar Vs.UOI and others (supra), Hon'ble Delhi High Court has observed that "Mr. Mohanty is justified in advancing the plea that the Authority, while revoking the suspension order, did not decide, in what manner the suspension period shall be treated. Even assuming that on the date when the suspension was revoked, the disciplinary proceedings were not complete, even then I find that the DA while passing the final order, has also not decided, in what manner the suspension period shall be treated. Whereas in the instant case, when the suspension was revoked, the disciplinary and criminal proceedings, both were pending against the applicant and respondents in the impugned order dated 6.7.2021 has clearly indicted in para 7 that "Since suspension of Shri Mukesh Meena, Deputy Commissioner is being revoked pending finalization of the disciplinary and court proceedings, the treatment of suspension period and pay and allowances for the suspension period shall be reviewed on its own motion after the conclusion of the disciplinary/criminal proceedings in terms of Rule 54-B (6). Hence, this case will also not be applicable in the case of applicant.
17. If the ratio laid down in cases relied upon by the learned counsel appearing for the applicant is taken into consideration in the light of the submissions raised across the bar, the disciplinary authority revoked the suspension of the charged officer but did not pass the final order regarding pay and allowances for the suspension period till the conclusion of disciplinary /criminal Page 15 of 16 O.A.163/2022 proceedings taking recourse to the provision of FR 54-B(6). if relief no. 8.2 is allowed and relating paragraph 7 of the impugned order of revocation is quashed/set aside, then question will arise what will remain to decide by the disciplinary authority after conclusion of the disciplinary/ criminal proceedings under FR-54 B(6). Thus, we are of the view that there is no illegality and impropriety in the impugned order. Disciplinary Authority has rightly postponed for passing of final order regarding pay and allowances for the suspension period till the conclusion of disciplinary /criminal proceedings under provision of FR 54-B (6).
18. Accordingly, O.A. is dismissed.
19. No order as to costs.
(Dr. Sanjiv Kumar) ( Justice OM Prakash VII)
Member (A) Member (J)
HLS/-
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