Central Administrative Tribunal - Delhi
Subhash Chand vs Comm. Of Police on 13 January, 2023
1
OA No. 1711/2015
Item No.19/C-I
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1711/2015
This the 13th day of January, 2023
Hon'ble Mr. Mohd. Jamshed, Member (A)
Subhash Chand, Aged about 57 years
S/o Shri Lokman Dass Sharma
R/o 27/5/3-B, 1st Floor,
Main Church Road,
Jawala Nagar, Shahdara,
Delhi - 110032
Head Constable No. 1945/NE
District Lines, Delhi Police
Seelampur, Delhi
... Applicant
(By Advocate: Mr. Kanwal Sapra)
Versus
1. Govt. of NCT of Delhi,
Through Chief Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi.
2. The Commissioner of Police
Police Head Quarters
MSO Building, I.P. Estate
New Delhi
3. Deputy Commissioner of Police
North-East District
Seelampur, Delhi.
... Respondents
(By Advocate: Mr. Amit Anand with Ms. Aanchal
Anand)
2
OA No. 1711/2015
Item No.19/C-I
O R D E R (ORAL)
The applicant was working as Constable in Delhi Police since 28.11.1978 and subsequently, promoted as Head Constable in 1987. Vide suspension order dated 07.02.2002, he was placed under suspension w.e.f. 26.10.2001, which was the date of his criminal case in FIR No. 102/597 dated 17/18.10.2001 under Section 302 IPC. He was dismissed from service as he was arrested in criminal case on 20.06.2006. He was subsequently convicted for life imprisonment by the court vide order dated 04.12.2004. Although, he was dismissed from service, he was reinstated in service vide order dated 18.05.2009 in terms of order of Tribunal passed in OA No. 688/2009. A departmental inquiry was initiated against the applicant and was held in abeyance till the final outcome of first appeal filed by him in the Hon'ble High Court of Allahabad. On 13.03.2015, the applicant moved an application for the grant of annual increment during his suspension period as due w.e.f. 26.10.2001. This was declined by the respondents stating that the same can be granted only on directions of court vide note dated 14.03.2015.
3OA No. 1711/2015 Item No.19/C-I
2. By filing the OA, the applicant is seeking relief in terms of setting aside the impugned order and to grant annual increments to the applicant w.e.f. 26.10.2001. The applicant has primarily relied upon the Hon'ble Apex Court judgement in Union of India vs. P.C. Mishra & Ors. in W.P. (C) No. 9042/2009 dated 15.02.2010.
3. The respondents have filed their counter affidavit opposing the OA and submitting that during the period of suspension, the applicant is not entitled for increments. Reliance has been placed on various judgements, i.e., Union of India vs. P.C. Mishra & Ors. dated 15.02.2010, Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010) and Dr. Mahabir Prasad Yadav vs. Lakshmibai College in W.P. (C) No. 13811/2019 dated 27.07.2020.
4. Heard Mr. Kanwal Sapra, learned counsel for the applicant and Mr. Amit Anand, learned counsel for the respondents.
5. The applicant was working as Head Constable in Delhi Police and was placed under suspension on 07.02.2002 w.e.f. 26.10.2001. He was arrested in a criminal case under Section 302 IPC, registered against him. He was subsequently convicted for life imprisonment 4 OA No. 1711/2015 Item No.19/C-I by the court on 04.12.2004. He was also dismissed from service, but subsequently reinstated in service in terms of order passed by the Tribunal in OA No. 688/2009. He, however, continued to remain under suspension after his reinstatement. He preferred an application dated 03.03.2015 seeking grant of annual increment at par with those who were granted the benefit of increments in some other cases. His request was rejected as the relief granted to others was specific on order of the court.
6. The claim of the applicant is that during the period of suspension, his regular increment should be granted and subsistence allowance should be accordingly worked out. He has relied upon the judgement of Hon'ble Delhi High Court in P.C. Mishra (supra). However, the salient facts of P.C. Mishra (supra) is that the said case and its ratio is distinguishable in as far as the claim of the increment during the suspension period was sought after reinstatement whereas in the present case, the applicant remains under suspension and is seeking increments.
7. Learned counsel for the respondents has drawn our attention to the latest judgement of Hon'ble Delhi High Court in Dr. Mahabir Prasad Yadav vs. Lakshmibai College in W.P. (C) No. 13811/2019 dated 27.07.2020, 5 OA No. 1711/2015 Item No.19/C-I wherein the issue of grant of increments during the period of suspension has been dealt. The operative portion of the judgement is reproduced as below:-
30. Tested thus on the anvil of the Rule position and the judgements, College, in my view, is not justified in denying the benefit of pay revision to the Petitioner in fixation of Subsistence Allowance.
31. The third and last issue which the Court is called upon to consider is the grant of two annual increments to the Petitioner during the period of suspension. "Suspension"
means an employee is debarred from performing his duties as also from the privileges of employment, as observed by the Supreme Court in State of Punjab vs. Jaswant Singh Kanwar, [(2014) 13 SCC 622]. Suspension is a temporary deprivation of office by reason of which an employee‟s powers, functions and privileges remain in abeyance. However, the suspended employee continues to be subjected to the same Disciplinary Rules & Penalties and to the same Authorities. Supreme Court in the said judgement also paraphrased the concept of „increment‟ in service jurisprudence as under:-
"13. "Increment" has a definite concept in service law jurisprudence. It is an increase or addition on a fixed scale; it is a regular increase in salary on such a scale. As noted by this Court in SBI v. Central Govt. Labour Court, under the labour and industrial laws, an increment is when in a timescale of pay an employee advances from the lower point of scale to the higher by periodic additions. In other words, it is addition in the same scale and not to a higher scale. An increment is an incidence of employment and an employee gets an increment by working the full year and drawing full salary. During the period of suspension, the contract of service remains suspended. The order of suspension by the departmental enquiry has the effect of temporarily suspending the relations between the master and servant with the consequence that the servant is not bound to render service and, therefore, the petitioner is an employee is not entitled to increments during this period which is taken as period not spent on duty."
32. In the said case the only question that had arisen for consideration was whether an official placed under suspension by the Disciplinary Authority is entitled for grant of increments during suspension. The Supreme Court, after 6 OA No. 1711/2015 Item No.19/C-I analyzing the Rule position, concluded that only the period spent on duty in a post could be counted for the purpose of increments.
33. The said controversy once again came up for consideration before a Division Bench of this Court in Devi Krishan (supra). The Court relied upon the judgement of Supreme Court in Jaswant Singh Kanwar (supra) and held that an employee is not entitled to increments during the period of suspension. Relying on the said judgment of Division Bench, another Division Bench of this Court in Government of NCT of Delhi vs. Ram Nath in W.P. (C) 12109/2015 decided on 08.12.2016, set aside an Order of the Central Administrative Tribunal directing grant of increments to the Respondent therein, for the period of suspension. This position of law has been enunciated in several judgements and without burdening the present judgement, I may only refer to one by the Rajasthan High Court in Brij Lal Bundel vs. State of Rajasthan & Anr., [2006 SCC OnLine Raj 215] and another by the Madras High Court in Union of India & Ors. vs. P. Narasimhan & Anr. [2014 SCC OnLine 11844].
34. The word „increment‟, to elucidate, is an increase on a fixed scale and when it is in time scale of pay, the employee moves from the lower point of scale to a higher by periodic addition. It is thus obvious that only when an employee works, he can be entitled to an increment and as a corollary, when the employee does not render any service during suspension, he cannot be granted an increment.
35. Learned Counsel for Petitioner has heavily relied on the judgment in the case of Mritunjai (supra) of the Allahabad High Court and P.C. Misra (supra) of a Division Bench of this Court to substantiate his argument for grant of increments. Suffice would it be to mention that the judgement in Mritunjai (supra), which is a judgement by a Single-Judge Bench of the Allahabad High Court, has been considered by the Division Bench of this Court in Ramnath (supra) and the judgement in P.C. Misra (supra) has been distinguished in a recent judgement by the Division Bench of this Court in Chandra Shekhar (supra). In the judgement of Chandra Shekhar (supra), the aforesaid position of law has been reiterated, declining the benefit of increments to delinquent employee during suspension period.
36. Reading the judgements referred to above, the inexorable conclusion is that the Petitioner is not entitled to grant of increments during the suspension period. Under Rule 10 of the CCS (Revised Pay) Rules, 2016, there are two dates for grant of increment, namely, 1 st January and 1st July of every year instead of the date of 1st July under the CCS (Revised Pay) Rules, 2008. However, an employee shall be entitled only to one annual increment either on 1st January or 1st July depending on the date of his appointment, 7 OA No. 1711/2015 Item No.19/C-I promotion or grant of financial upgradation. Had the Petitioner not been suspended on 01.03.2018, he would have been entitled to two increments for the years 2018-2019 and 2019-2020. However, on account of the intervening suspension, increments cannot be granted to him at this stage.
37. This, however, should not be interpreted to mean that the Petitioner would be necessarily disentitled to the increments for the period of suspension. Once the disciplinary proceedings pending against the Petitioner, culminate into exoneration, partial or full/ penalty and/or acquittal/conviction in the criminal proceedings, as the case may be, at that stage, depending on the final verdict, the College would decide whether or not the period of suspension is to be counted as period spent on duty or dies non. This would set the stage for deciding the entitlement of the Petitioner to the Increments during suspension period. Thus at this stage, this Court leaves this issue open with the observation that payment of Increments for the suspension period is deferred until a final order is passed by the College under FR 54(B), depending on the outcome of the Disciplinary/Criminal Proceedings."
8. The above judgement very clearly specifies that when an employee does not render any service during suspension, he cannot be granted any increment.
9. In view of settle position of law regarding grant of increment during the suspension period as above, I find that the claim of the applicant for grant of increment during the suspension period is in no way tenable. Accordingly, the OA, being devoid of merit, stands dismissed. No order as to costs.
(Mohd. Jamshed) Member (A) /akshaya/