Central Administrative Tribunal - Delhi
Shri A.K.Jain vs Govt. Of Nct Of Delhi Through on 17 April, 2013
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No 4158/2012 New Delhi this the 17th day of April, 2013 Honble Mr. A.K.Bhardwaj, Member (J) Shri A.K.Jain U.D.C., S/o Late Shri P.R.Jain, R/o 3/4/39, Gopi Nath Bazar, Delhi Cantt.-110011 Applicant (By Advocate Ms. Rashmi Chopra) VERSUS 1. Govt. of NCT of Delhi Through Chief Secretary, Delhi Secretariat, I.P.Estate, New Delhi. 2. The Commissioner, Trade & Taxes, Vyapar Bhawan, I.P.Estate, New Delhi. 3. The Secretary (Services) Govt. of NCT of Delhi. Delhi Secretariat, Players Building, I.P.Estate, New Delhi-110002 Respondents (By Advocate Shri Vijay Pandita ) O R D E R
As has been alluded in the Original Application, being involved in a criminal case registered vide FIR No. 12/2005, the applicant was placed under suspension vide Order No. F.II (55)/CC/CST/04-05/183 dated 09.03.2005. By Order No.F.II (87) CC/CST/2005 dated 1.08.2005 (Annexure A-11), the competent authority ordered that he would get subsistence allowance equal to 75 percent of the leave salary, he could have drawn if he had been on leave on half average pay plus dearness allowance with immediate effect. As the suspension order that could not be reviewed in terms of Rule 10 (6) of the CCS (CCA) Rules, 1965, the same was revoked vide Order no. F.II (104) CC/CST/2005/69 dated 11.08.2006 (Annexure A-III) w.e.f. 7.6.2005. Subsequently, the applicant OA 4158/2012 was again placed under suspension vide Order No.F.II (104)/CC/CST/2005/174-176 dated 25.08.2006. Finally, the respondents issued Order No. F.II/68/CC/CST/2005/325-334 dated 8.9.2006 dismissing him from service.
2. The order of dismissal was challenged by the applicant in OA No. 2546/2006 filed before this Tribunal, which was taken up for disposal along with a batch of petitions by Full Bench and disposed of in terms of order dated 31.08.2009. By said order, this Tribunal quashed the order of dismissal of applicant from service and ordered that he would remain under suspension and would be entitled to subsistence allowance from the date of dismissal. Para 31 of the order reads as under:-
31. All these Applications are accordingly allowed. Impugned orders passed by the concerned authorities, be it the disciplinary or the appellate authorities are set aside and quashed. The respondents would be, however, at liberty to proceed against the applicants departmentally. We are conscious that there can be only zero tolerance for corruption, but before a person is thrown away by such a stigma which may not only ruin his career but also his reputation in society, the orders should be passed only after following the due procedure. While, however, setting aside the orders, as mentioned above, we pass no orders of reinstatement of the employees/applicants. It may be recalled that before the orders terminating services of the applicants were passed, they were under suspension. They would thus remain under suspension and may be, at the most, entitled to subsistence allowance from the date they were dismissed. It will be exclusively up to the authorities to continue their suspension during the pendency of departmental enquiry against them. Considering the nature of the case, we direct the authorities to conduct the enquiry on day-to-day basis and pass final orders, insofar as, at least the disciplinary authority is concerned, as expeditiously as possible and preferably within a period of six months from today. If the employees may not cooperate, then for reasons to be recorded the respondents may even proceed ex parte against them, or seek orders on that behalf from this Tribunal. In view of the peculiar facts and circumstances of this case, costs of this litigation are made easy. The Writ Petition (C) No.78/2010 preferred by Government of NCT of Delhi and Ors through Commissioner, Trade and Taxes against the aforementioned order of this Tribunal was taken up for disposal along with batch of petitions and dismissed in terms of order dated 6.08.2010. Paras 47 to 49 of the order read as under:-OA 4158/2012
47. A modicum of depth at the enquiry would have sufficed. We should also not be understood as saying that the witnesses from the channel would be required for such enquiry. We need not go into further details of what ought to be done at the enquiry as it is for the disciplinary authority/enquiry officer to determine, and rest, content with noting that in our view the dispensing with the enquiry was not justified.
48. Taking all these facts into consideration, we find ourselves in agreement with the conclusion reached by the Tribunal, though for somewhat different reasons, as we have noted above.
49. In view of the aforesaid, the writ petitioners are dismissed with no orders as to costs. In the Contempt Petition No.78/2011 filed by applicant alleging disobedience of the order passed in OA No.2546/2006, this Tribunal passed the order dated 10.02.2011 as follows:-
Mrs. Avnish Ahlawat and Mr. Pandita, counsel defending the respondents, on instructions, state that the subsistence allowance shall be paid to the applicants within a period of three weeks from today but the same shall be subject to the SLP that has already been filed against the orders of this Tribunal and Honble High Court.
2. The statement of Mrs. Ahlawat and Mr. Pandita stands recorded and in view thereof, present contempt petitions are closed.
Process DASTI. Thus, the Commissioner, Trade & Taxes, issued Office Order No.F.4 (20)/Vig./2011/DTT/2578-90 dated 22.02.2011 revoking the dismissal of applicant w.e.f. 8.09.2006 and placing him under suspension with effect from the same date. Para 2 of the order is extracted hereinbelow:-
Now, in pursuance of Honble CATs order passed in the Contempt Petition No. 78/2011 in OA No. 2546/06 in the matter of Sh.A.K.Jain, UDC v/s Commissioner, Trade and Taxes, the dismissal of Sh.A.K.Jain, UDC is revoked with effect from 08.09.20106 and he is placed under suspension with effect from that date, retrospectively. On being so kept under suspension, the subsistence allowance of the applicant was fixed at 50 percent of the leave salary, thus he made a OA 4158/2012 representation dated 4.04.2011 requesting for giving him the subsistence allowance at the rate of 75 percent of leave salary, i.e. the amount he was drawing as on 8.09.2006. He reiterated his said request by making the representation dated 18.04.2012. Vide order No.F.4(20) Vig/2011/DTT/197 dated 07.05.2012, while continuing the suspension of the applicant for another period of 180 days w.e.f. 14.05.2012, the concerned authority enhanced his subsistence allowance from 65 percent to 70 percent of the salary of applicant from 14.05.2012. Before that, the said authority had issued orders No. F.4 (20)/Vig/2011/DTT/3338 and F.4 (20)/Vig/2011/DTT/4782 dated 20.05.2011 and 17.11.2011, extending the period of suspension of applicant and enhancing the subsistence allowance from 50 to 60 percent and 60 to 65 percent of the leave salary. Vide communication No.F.4 (20)/Vig/2011/DTT/1026 dated 16.10.2012, the Vigilance Officer, Department of Trade and Taxes, Government of NCT of Delhi informed the applicant that Commissioner, VAT had considered his representation dated 18.04.2012 and rejected his request for releasing the subsistence allowance at the rate of 75 percent instead of 50 percent w.e.f. the date of revocation of his dismissal order, i.e 8.09.2006.
3. In the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, the applicant has assailed the order dated 16.10.2012 and sought direction to the respondents to pay him subsistence allowance at the rate of 75 percent w.e.f. 8.09.2006 in terms of the provision of FR 53 and also to give him annual increment as per FR 24. He has also prayed for grant of all consequential benefits, including arrears along with interest thereon at the rate of 24% from the date the amount became payable. Ms. Rashmi Chopra, counsel for OA 4158/2012 applicant submitted that it is not so that in terms of the order dated 22.02.2011, the applicant was placed under suspension afresh, but he was kept under suspension as he was on 8.09.2006. According to her, once after suspension of applicant vide order dated 25.08.2006, he was granted subsistence allowance at the rate of 75 percent of the leave salary which he continued to draw as on 8.09.2006, on being kept under suspension from the date of dismissal, applicant could not be granted reduced subsistence allowance. To show that as on 8.09.2006, at the time of dismissal, the applicant was getting subsistence allowance at the rate of 75 percent of leave salary, she produced a copy of Bill No. 310 dated 25.04.2012, relevant excerpts of which read as under:-
Pay and Allowance/Subsistence Allowance in respect of Sh. Ashok Kumar Jain, UDC ( Under Suspension) w.e.f. Jan-2006 to March-2012.
Sl.No. 1 to 8 xxx xxx xxx DUE S.No. Drawn Paid Period DA rate Pay G.Pay DA CC A HRA Total 9. 75% 25.8.06 to 1.9.06 1839 711 51 0 0 2601 Drawn DA Rate Pay D.Pay DA HRA CCA Total 29% 923 462 402 0 68 1854 Difference Pay G.Pay DA CCA HRA Payable amount 916 250 -351 -68 0 747 xxx xxx xxx Relying upon the orders of this Tribunal in OA Nos. 434/2011 (Kartar Singh Vs. Director of Employment and Ors decided on 30.11.2011 ), 2014/2012 ( D.J.Gupta Vs. Lt. Governor, Govt. of NCT of Delhi and Ors decided on 5.10.2012), 1073/2011 ( Rajeshwari Chauhan Vs. OA 4158/2012
Director of Social Welfare, Govt. of NCT of Delhi and Ors decided on 30.11.2011), 3470/2011 ( V.P.Garg Vs. Govt. of NCTD through the Chief Secretary and Ors. decided on 26.04.2012) and also the judgment of Honble Delhi High Court in (WP(C) No.9042/2009 ( Union of India Vs. P.C.Mishra and Ors) (decided on 15.02.2010), she submitted that the subsistence allowance of the applicant ought to have been re-fixed from time to time by giving due increment of pay to him for the suspension period.
4. On the other hand, Shri Vijay Pandita, counsel for respondents submitted that in implementation of the order passed by this Tribunal, the respondents placed the applicant under suspension afresh from 8.09.2006, thus his subsistence allowance was correctly fixed at the rate of 50 percent of the leave salary from said date. In para 4.15 of the reply, it is pleaded that as per clarification at serial No. 1 of FR 26, an employee during leave draws leave salary and not duty pay, thus an increment accruing during leave cannot, therefore, be drawn at the time when the employee is under leave and the same will be drawn from the date of resumption of duty on return from leave. Since the applicant being under suspension is allowed subsistence allowance, which is not a duty pay, no increment can be granted to him during the said period. Para 4.15 of the reply reads as under:-
In reply to para 4.15 it is submitted that as per FR 26 clarification at Sl.No.1 states as under:-
An employee during leave draws leave salary and not duty pay. An increment accruing during leave cannot, therefore, be drawn during leave. The increment in such cases will be drawn from the date of resumption of duty on return on leave. Since the employee placed under suspension are allowed subsistence allowance which is not a duty pay. Hence increment during absences from duty i.e. under suspension cannot be granted. OA 4158/2012
5. I have heard learned counsel for parties and perused the record. The two salient propositions arising to be determined in the present OA are:
(i) Whether the applicant is entitled to subsistence allowance at the rate of 75 percent of leave salary w.e.f. the date of dismissal, i.e. 8.9.2006
(ii) Whether during the period of suspension, the applicant is entitled to earn increment of pay and consequential revision/refixation of his subsistence allowance from time to time.
The prime contention put forth by the respondents to deny the enhanced subsistence allowance at the rate of 75 percent to the applicant w.e.f. 8.09.2006 is that in terms of the order dated 22.02.2011, he was placed under suspension afresh, thus was correctly granted subsistence allowance as per FR 53 (1) (ii) (a) and subsequently the allowance was increased suitably in terms of FR 53 (1) (ii) (a) (i). It is Rule 10 of CCS (CCA) Rules, 1965 which provides for placement of a Government servant under suspension, where a disciplinary proceeding against him is contemplated or is pending; or where in the opinion of the competent authority, he has engaged himself in activity prejudicial to the interest of the security of the State; or where a case against him in respect of any criminal offence is under investigation, inquiry or trial. Sub-rules 2 to 4 of the said Rule provide for deemed suspension. A Government servant may be deemed to have been placed under suspension by an order of appointing authority with effect from the date of his detention, if he is detained in custody for a period exceeding forty-eight hours, the date of conviction, from the date of dismissal set asided in appeal or review as per the provision of CCS (CCA) Rules or by a decision of Court of Law. In terms of the Rule 10 (3) where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant OA 4158/2012 under suspension is set asided in appeal or in review under the said Rule, the order of his suspension is deemed continued in force from the date of the original order of dismissal, removal or compulsory retirement and remain in force until further orders, thus may not be called a fresh order of suspension. Only in such situation where at the time of dismissal, removal or compulsory retirement, the employee is not under suspension and during pendency of further enquiry or action is deemed under suspension, his suspension may be called afresh. In the present case itself, when the respondents issued the order of suspension dated 25.08.2006, till his dismissal on 8.9.2006, the applicant was paid subsistence allowance at the rate of 75 percent as per order dated 1.08.2005. Thus, the respondents believed that the original suspension of the applicant was ordered on 9.03.2005 and on expiry of the period of the first three months, he was entitled to increased subsistence allowance in terms of FR 53 (1) (ii) (a) (i). It is not the case of respondents that the period of suspension has been prolonged due to reasons directly attributable to the applicant. The non-attributability of the continuous suspension of the applicant to him is also established from the orders dated 20.05.2011, 17.11.2011 and 7.05.2012 whereby his subsistence allowance was increased initially from 50 to 60 percent, then 60 to 65 percent and finally 65 to 70 percent. It was in terms of the order dated 31.08.2009 passed by this Tribunal ((Annexure A-IV) that the respondents had issued order dated 22.02.2011 (ibid) placing the applicant under suspension w.e.f. 8.09.2006. In fact, in order dated 31.08.2009 itself, this Tribunal had ordered that the applicant would remain under suspension which means that he was to remain in the same position in which he was on the date of dismissal. Had the applicant been not under suspension on the date of dismissal, for the period from the date of dismissal till the date of issuance of order of deemed suspension and for a further period of three OA 4158/2012 months, he could be entitled to the subsistence allowance at the rate of 50 percent of leave salary only. But since at the time of dismissal, he was already under suspension, he cannot be deemed to have been placed under suspension afresh from the date of dismissal but would be deemed under continuous suspension from 25.08.2006 itself. When a person is continued or ordered to remain (kept) in his earlier position, he would be subjected to all pros and cons of such position alone till the same is altered by a conscious decision.
6. In the present case, being continued (remained) under suspension in implementation of the Courts order, the subsistence allowance of the applicant could not be automatically deemed reduced from 75 to 50 percent. It was always open for the respondents to take a conscious decision in this regard. Though while extending the period of suspension the respondents took conscious decision regarding the subsistence allowance of the applicant and revised the same, but in a positive direction and from prospective effect. They never viewed that in view of the order of dismissal passed by the respondents and pending litigations before this Tribunal and Honble High Court, the subsistence allowance was to be reduced from 75 to 50 percent. Had such decision been taken consciously, the same could be looked at differently. But in the present case, no such decision has been taken. Even in the order dated 16.10.2012, the respondents have dealt with the case of applicant as if he was seeking enhancement of subsistence allowance from 50 to 75 percent. In fact the prayer of the applicant was not for enhancement but for payment of the same allowances he was drawing on the date of the order of dismissal i.e. 8.09.2006. In the circumstances, it is held that from 8.09.2006 till further decision, the applicant would be entitled to subsistence allowance at the rate of 75 percent of the leave salary.
OA 4158/2012However, it would be always open to the respondents to alter and vary such allowances, in terms of FR 53 (1) (ii) (a) (i) and 2 both upward and downward.
7. As far as the question of increment of pay during the period of suspension and the revision of subsistence allowance from time to time on the basis of increased pay is concerned, ex-facie, in terms of FR 53 (1) (ii)(a), a Government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority is entitled to the 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 or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary. In terms of Rule 40 of CCS (Leave) Rules, 1972, except as provided in sub-rule (7), a Government servant who proceeds on earned leave is entitled to leave salary equal to the pay drawn immediately before proceeding on earned leave. A Government servant on half pay leave or on leave not due is entitled to leave salary equal to half the amount specified in sub-rule (1) (ibid). For easy reference, Rule 40 of CCS (Leave) Rules is extracted hereinbelow:-
40. Leave Salary (1). Except as provided in sub-rule (7), a Government servant who proceeds on earned leave is entitled to leave salary equal to the pay drawn immediately before proceeding on earned leave.
NOTE- In respect of any period spent on foreign service out of India, the pay which the Government servant would have drawn if on duty in India but for foreign service out of India shall be substituted for the day actually drawn while calculating leave salary. OA 4158/2012 As has been provided in FR 26 (b) (ii), all leave except extraordinary leave taken otherwise than on medical certificate and the period of deputation out of India shall count for increment in the time-scale applicable to a post in which a Government servant was officiating at the time he proceeded on leave or deputation out of India and would have continued to officiate but for his proceeding on leave or deputation out of India. In terms of proviso to sub-rule, in the given circumstances, the President may direct that extraordinary leave shall be counted for increment. For easy reference, FR 26 (b) (ii) is extracted below:-
All leave except extraordinary leave taken otherwise than on medical certificate and the period of deputation out of India shall count for increment in the time-scale applicable to a post in which a Government servant was officiating at the time he proceeded on leave or deputation out of India and would have continued to officiate but for his proceeding on leave or deputation out of India.
Provided that the President may, in any case, in which he is satisfied that the extraordinary leave was taken for any causer beyond the Government servants control or for prosecuting higher scientific and technical studies, direct that extraordinary leave shall be counted for increment under Clause (i) or (ii). Though in clarification of the point of doubt at serial no. 1 of DG P&T letter No. 3-1/75-P&T dated the 1st October 1975 and 25th November, 1975, issued with the concurrence of P&T Finance, reported below FR 26, it is mentioned that since during leave an employee draws leave salary and not duty pay, an increment accruing during leave cannot be drawn by him while being on leave and the same in such cases is drawn from the date of resumption of duty on return from leave, but in the said clarification, it is no where provided that for the period of leave, an employee is not entitled to increment. For easy reference, the clarification is extracted hereinbelow:-OA 4158/2012
Sl.No. Point of doubt Clarification 1 2 3 How the increment will be regulated if the employee happens to be on leave on the first of the month? An employee during leave draws leave salary and not duty pay. An increment accruing during leave cannot, therefore, be drawn during leave. The increment in such cases will be drawn from the date of resumption of duty on return from leave.
In the case of suspended employee who is entitled to draw subsistence allowance with reference to leave salary, it is not certain that he would resume the duty, as in his case there is also a possibility that he may be dismissed, removed or compulsorily retired from service. Ideally, he should be given increment of pay during the period of suspension and his subsistence allowance should be re-fixed accordingly from time to time.
8. In Union of India Vs. P.C.Mishra and Ors (WP (C) No. 9042/2009 decided on 15.02.2010, while upholding the order passed by this Tribunal in OA No. 1056/2008, Honble High Court viewed as under:-
Perusal of the order of the Supreme Court dated 1st February, 2010 in case of Union of India v. R.K.Chopra reveals that the Apex Court has not held that a delinquent officer shall not be entitled for increment in subsistence allowance. Rather considering Note 3 Rule 7 of Revised Pay Rules and FR 53(1) (ii)(a) and the clarification dated 27th August, 1958 it was held 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 subsistence allowance for the period of suspension, but if the revision of scales of pay takes effect from a date following within the period of suspension then the benefit of revision of pay and subsistence allowance will accrue to him only after reinstatement depending on the fact whether the period of suspension is to be treated as period spent on duty or not. The salient facts of the R.K. Chopra would reveal that the said case and its ratio is distinguishable. The delinquent officer in this case was placed under suspension from 6th June, 1989. While under suspension he claimed revision of subsistence allowance based on fifth pay commission which request was rejected by the Government. The said official was later on dismissed from service on 4th August, 2005. After dismissal from the service he sought declaration that he was entitled to get subsistence allowance on the revised pay scale with effect from 1st January, 1996. The OA 4158/2012 Tribunal had taken the view that it would be unjust to deny subsistence allowance on the basis of revised pay to the employee who stood suspended prior to 1st January, 1996 especially when employees who were suspended after that date would be entitled to get subsistence allowance on the revised pay scale. The High Court had also upheld the decision of the tribunal which was challenged in the Supreme Court.
The Supreme Court had held that if a person is reinstated in the post and the period of suspension is treated as duty, he may be allowed to exercise the option after such a reinstatement. The Apex court held so noticing FR 23. Since the revised pay scales came into force on 1st January, 1996 when the official was already under suspension and later on he was dismissed, it was held that the official will not be entitled for increments in the subsistence allowance. In contradistinction to the said case, the respondent no.1 was placed under suspension after 1st January, 1996 the recommendation of fifth Pay Commission were made on 18th August, 1998. The suspension of the respondent no. 1 was revoked pursuant to the order passed by the Tribunal in an earlier original application filed by the respondent no.1. No separate disciplinary proceedings are pending against the respondent no.1. Rather he has been appointed/reinstated to his regular post. No order has been passed withholding his increments of subsistence allowance. Consequently on the basis of the ratio of R.K.Chopra (supra) the petitioners cannot contend that the respondent no.1 is not entitled for increments due to him during the period of his suspension.
During the pendency of the present petition it was rather emphatically asserted on behalf of petitioners that pursuant to the orders passed against the respondent no.1, the increments in subsistence allowance had been withheld. Despite the opportunity granted to the petitioner on 13th January, 2010, no such orders were produced. On failure to produce the orders with holding the increments in subsistence allowance, it was then contended that without the orders, increment in subsistence allowance can be withheld. However, the learned counsel for the petitioner is unable to show that if the respondent no.1 has already been reinstated in his regular post after revocation of his suspension order pursuant to an order passed by the Tribunal, then on what grounds or under what rules it can be done by the petitioner. In the circumstances and taking into consideration all the facts and circumstances, this court does not find any illegality or irregularity in the order of the Tribunal which is impugned before us by the petitioner. There are no grounds to interfere with the order of the Tribunal in the facts and circumstances in exercise of jurisdiction under article 226 of Constitution of India. The writ petition in the facts and circumstances is, therefore, without merit and it is dismissed. Parties are however, left to bear their own costs.OA 4158/2012
9. In Kartar Singh Vs. Director, Employment, Govt. of NCT of Delhi and Ors ( OA 434/2011 decided on 30.11.2011), it has been held thus:
6.The applicant further relied upon an Order of the Hyderabad Bench of this Tribunal in U.Gangaraju vs. D.R.M. SCR, Vijaywada & ors., 1992 (3) AISLJ CAT 235. In the aforesaid case, the Tribunal has relied upon judgment of Balwant Rai (supra) and held that the annual increments during the suspension period has to be allowed for the purpose of calculating the payment of subsistence allowance. The very same bench of this Tribunal has also passed an order in OA-1056/2011 Saranjit Singh vs. Director, Employment directing the respondents to grant increments to the applicant concerned during the period of suspension. The relevant part of the said order reads as under:
4. We have heard the learned counsel for the parties. We agree with the counsel for applicant that withholding of increment is a minor penalty and in the absence of such an order by the competent authority, the increments which are payable to an employee on year to year basis cannot be withheld. We do not find any support for the argument of the respondents that the releasing of increments under FR 24 is subject to the provisions contained in FRs 26, 53 & 54 as this Tribunal has already taken a view in this matter in OA-1056/2008 (supra) and the said view has already been upheld by the High Court in its judgment dated 15.2.2010 in WP (C) No.9042/2009 (supra). We are, therefore, of the considered view that applicant is entitled to the reliefs sought by him. Accordingly, we allow this OA and direct the respondents to release all the increments which have fallen due during the period of his suspension as provided under FR 54 for the purpose of computing his subsistence allowance. The respondents shall work out the arrears thus payable to the applicant in terms of the aforesaid directions and the same shall be paid to him within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
7. We have heard the learned counsel for the parties and considered the rules/law regarding suspension and the subsistence allowance allowed to be paid to the suspected government employee.
8. As laid down by a Coordinate Bench of this Tribunal in OA-1056/2008 P.C.Misra vs. Union of India & Ors. decided on 7.11.2008 wherein it has been held that there was no reason as to why the increment due to the applicant therein even during the period of suspension was not released. The applicant has also produced a copy of the judgment of the OA 4158/2012 Honble High Court of Delhi in WP(C) No.9042/2009 decided on 15.2.2010 upholding the aforesaid order of this Tribunal. Relevant part of the said judgment reads as under:
In the circumstances and taking into consideration all the facts and circumstances, this court does not find any illegality or irregularity in the order of the Tribunal which is impugned before us by the petitioner. There are no grounds to interfere with the order of the Tribunal in the facts and circumstances in exercise of jurisdiction under article 226 of Constitution of India. The writ petition in the facts and circumstances is, therefore, without merit and it is dismissed. Parties are however, left to bear their own costs.
9. In view of the above position, this OA is allowed. The respondents are directed to release the increments as due to the applicant during the suspension period and the arrears of subsistence allowance be recalculated and arrears be paid to him within a period of two months from the date of receipt of a copy of this order. This being the second Original Application filed by the applicant seeking the same relief, he is entitled to cost of Rs.2000/- (Rupees two thousand only).
Also in Rajeshwari Chauhan Vs. Director, Social Welfare, Govt. of NCT of Delhi and Ors ( OA No. 1073/2011 decided on 30.11.2011), a direction was issued to respondents to release all increments fallen due to applicant during the period of suspension. Relevant excerpts of said judgment read as under:-
4. We have heard the learned counsel for the parties. We agree with the counsel for applicant that withholding of increment is a minor penalty and in the absence of such an order by the competent authority, the increments which are payable to an employee on year to year basis cannot be withheld. We do not find any support for the argument of the respondents that the releasing of increments under FR 24 is subject to the provisions contained in FRs 26, 53 & 54 as this Tribunal has already taken a view in this matter in OA-1056/2008 (supra) and the said view has already been upheld by the High Court in its judgment dated 15.2.2010 in WP (C) No.9042/2009 (supra). We are, therefore, of the considered view that applicant is entitled to the reliefs sought by him. Accordingly, we allow this OA and direct the respondents to release all the increments which have fallen due during the period of his suspension as provided under FR 54 for the purpose of computing his subsistence allowance. The respondents shall work out the arrears thus payable to the applicant in terms of the aforesaid directions and the same shall be paid to him within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.OA 4158/2012
5. We have heard the learned counsel for the parties and considered the rules/law regarding suspension and the subsistence allowance allowed to be paid to the suspected government employee.
6. As laid down by a Coordinate Bench of this Tribunal in OA-1056/2008 P.C.Misra vs. Union of India & Ors. decided on 7.11.2008 wherein it has been held that there was no reason as to why the increment due to the applicant therein even during the period of suspension was not released. The applicant has also produced a copy of the judgment of the Honble High Court of Delhi in WP(C) No.9042/2009 decided on 15.2.2010 upholding the aforesaid order of this Tribunal. Relevant part of the said judgment reads as under:
7. In the circumstances and taking into consideration all the facts and circumstances, this court does not find any illegality or irregularity in the order of the Tribunal which is impugned before us by the petitioner. There are no grounds to interfere with the order of the Tribunal in the facts and circumstances in exercise of jurisdiction under article 226 of Constitution of India. The writ petition in the facts and circumstances is, therefore, without merit and it is dismissed. Parties are however, left to bear their own costs.
9. In view of the above position, this OA is allowed. The respondents are directed to release the increments as due to the applicant during the suspension period and the arrears of subsistence allowance be recalculated and arrears be paid to him within a period of two months from the date of receipt of a copy of this order. This being the second Original Application filed by the applicant seeking the same relief, he is entitled to cost of Rs.5000/- (Rupees five thousand only).
2. The aforesaid order except for the cost part will apply in this case also.
Also in D.J.Gupta Vs. Lt. Government, Govt. of NCT of Delhi and Ors (OA No. 2014/2012 decided on 5.10.2012), it could be viewed as under:-
7.As regards his contention that annual increments are admissible during the period of suspension and they have to be taken into consideration for calculating the monthly payment of subsistence allowance are concerned, he has relied upon the judgment of the Honble Supreme Court in Balwant Rai Rati Lal Patel v. b AIR 1968 C 800 and the decision of the Honble High Court of Allahabad in Maritunjai Singh v. State of UP and Others, AIR 1971 Allahabad 214 (v. 58 C 47) wherein it was held that the contract of service subsists during the period of suspension, the employee remains in service and he is entitled to all benefit of service, even though he is not expected to work. The increments shall ordinarily be drawn as a matter of course unless it is withheld. Learned counsel has also relied OA 4158/2012 upon the order of this Tribunal in U. Gangaraju v. D.R.M. SCR, Vijaywada & Ors, 1992 (3) AISLJ CAT 235, the order of Hyderabad Bench of this Tribunal rendered in Sarjanjit Singh v. Director, Employment (OA No. 1056/2011) (Annexure A-9) and Shri P.C.Mishra v. Union of India & Ors (OA No. 1056/2008) (Annexure A-10). The order passed in the case of P.C.Mishra v. Union of India & Ors, by the Honble Tribunal was upheld by the Honble High Court of Delhi in W.P. (C) No. 9042/2009 decided on 15.02.2010 (Annexure A-11). In view of the aforementioned, particularly having due regard to the orders passed by the different Division Benches of this Tribunal and being bound by the same, I am of the view that applicant is entitled to increment of pay for the period of suspension and refixation of his subsistence allowance accordingly.
10. Thus, the OA is disposed of with direction to respondents to grant increment of pay to applicant for the period during which he remained under suspension and re-fix his subsistence allowance accordingly and (ii) to grant him such allowance at the rate of 75 percent of the leave salary w.e.f. 8.09.2006 till the next revision of the same in terms of FR 53 (ii (a) (i) and (2). It is made clear that the present OA would not come in the way of respondents to take independent decision from future date in accordance with the rules mentioned hereinabove. In the peculiar facts of the case, the prayer for interest on the arrears of refixed/enhanced subsistence allowance is declined. No costs.
(A.K.Bhardwaj) Member (J) sk