Central Administrative Tribunal - Delhi
Abhay Kumar Srivastava vs Union Of India Through on 11 December, 2012
Central Administrative Tribunal Principal Bench New Delhi O.A.No.1799/2012 Order Reserved on 27.08.2012 Order pronounced on 11.12.2012 Honble Shri G. George Paracken, Member (J) Honble Shri Sudhir Kumar, Member (A) Abhay Kumar Srivastava Age 58 years s/o Sh. Late Sh. S.P.Srivastava r/o A-137A, Sector-27 Noida. Applicant (By Advocate: Shri Sunil Pernandes with Shri Deepak Pathal) Versus Union of India through Secretary Ministry of Mines Shastri Bhawan New Delhi. Secretary Department of Personnel & Training Ministry of Personnel and Public Grievances North Block New Delhi. Respondents (By Advocate: Shri Rajinder Nischal) O R D E R By Sudhir Kumar, Member (A):
The applicant of this OA was appointed as Chairman-cum-Managing Director of the National Alluminium Company Limited (`NALCO, in short) which has its Headquarters at Bhubaneshwar.
2. The applicant faced a CBI case and was arrested, because of which he was under deemed suspension, and after he was released from judicial custody, the suspension was continued. Through this OA, the applicant has claimed that for want of review of his suspension after expiry of the statutorily prescribed period of 90 days and 180 days under the CCS (CCA) Rules, 1965, his suspension was liable to be revoked, and therefore, he has prayed for the following reliefs:
(i) Allow the original application.
(ii) quash and set aside the continued suspension of the applicant as ordered in terms of order dated 26.02.2011 with all consequential benefits.
(iii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.
3. The short question for determination in this OA is as to whether the applicant is entitled to claim the applicability of the statutorily prescribed review of suspension under Rule 10(6) of the CCS (CCA) Rules, 1965 or not.
4. The applicant was appointed as Chairman, NALCO, through an order of appointment Annexure A-3 dated 28.01.2010. It prescribed the period of his appointment to be for five years w.e.f. 1.10.2009 (FN), and also the Headquarters, the Pay, the Dearness Allowance, the Annual Increments, the House Rent Allowances, Residential accommodation and recovery of rent for the accommodation provided, the Companys own accommodation, the leased accommodation as well as the Self lease, repair/maintenance of leased accommodation, existing lease deeds, Office accommodation, rent recovery, leased accommodation, conveyance, leave, other allowances and perks, performance related payments, superannuation benefits, the conduct discipline and appeal rules applicable to him and the restricting on joining private commercial undertakings after retirement/resignation.
5. For the purpose of this OA, we need to reproduce here only para 1.15, relating to the discipline and appeal rules stated to be applicable to the applicant, which stated as follows:
1.15 Conduct, Discipline and Appeal Rules:
1.15.1 The Conduct, Discipline and Appeal Rules framed by the CPSE in respect of their non-workmen category of staff would also mutatis mutandis apply to him with the modification that the Disciplinary Authority in his case would be President.
1.15.2 . (Emphasis supplied)
6. Further, para 2 of the said letter of appointment also stated as follows:
2. In respect of any other item, concerning him which is not covered in preceding paras, he will be governed by the relevant Rules/instructions of the CPSE/Government.
7. When the CBI Regular Case 01 of 2011 of Anti Corruption Investigation Branch was registered against him on 26.02.2011, through Annexure A4 order dated 27.02.2011, the applicant was deemed to have been placed under suspension w.e.f. 26.02.2011, and further the President assigned the additional charge of the post of CMD, NALCO, to Shri B.L.Bagra, Director (Finance), NALCO, with immediate effect, in addition to his own duties.
8. The applicant was later released from judicial custody on 01.09.2011, and through his letter dated 13.09.2011 addressed to the Secretary, Ministry of Mines, Govt. of India, sent through the In-charge-CMD, NALCO, the applicant requested for release of his allowances, and also a change of his Headquarters to New Delhi. He also reiterated in the said letter the request made through his earlier letter dated 3.09.2011, and stated that under Rule 24 of NALCO Conduct, Discipline and Appeal Rules Para 2(i), which provides for increase of the subsistence allowance to 75% of basic pay in case the period of suspension exceeds six months, and if the prolongation of suspension period is not attributable to the employee under suspension, and as his period of suspension has been more than six months, and the prolonged period is not attributable to him, his subsistence allowance may be increased to 75% of basic pay under the rules in case the competent authority decides to continue his suspension.
9. The respondents acceded to his request, and through Annexure A5 order dated 22.09.2011, passed orders accepting his request for change of his Headquarters from Bhubaneshwar to New Delhi in view of his requirement to report to trial Court at New Delhi almost on a weekly basis, and further ordered that his suspension shall continue until further orders, and during the said period, he shall not leave the Headquarters without obtaining the previous permission of the Government, and it was also ordered that he shall draw subsistence allowance equal to 50% of his basic pay during the period of his suspension w.e.f. the date he had been granted bail by the competent Court, in terms of Rule 24 of the NALCO Conduct, Discipline & Appeal (CDA) Rules, 1984, and other applicable provisions.
10. The applicant made another request on 07.05.2012 (Annexure A/9 Colly.) stating as follows:
Sub: Review of Suspension and Subsistence Allowance Dear Sir, The undersigned was placed under suspension w.e.f. 26th February, 2011 vide Ministry of Mines, Govt. of Indias Order No.11(9)/2011-Met-I dated 26/02/11. The matter was reviewed by the Ministry and the undersigned was granted subsistence allowance of 50% of Basic Pay and admissible DA thereon w.e.f. 1st September, 211.
In this connection my letter dated 13th September 11 may please be referred (copy enclosed for ready reference). In terms of para 2.1 of rule 24 of NALCO Conduct, Discipline and Appeal (CDA) Rules 1984, the Competent Authority may like to review the suspension and the subsistence allowance. (Emphasis supplied)
11. Thereafter, the respondents acted on his request and passed the necessary orders on 17.05.2012 (Annexure A/10), the relevant parts of which are reproduced below:
Shri Abhay Kumar Srivastava, Chairman-cum-Managing Director, National Aluminium Company Limited (NALCO) under suspension w.e.f. 26.2.2011 was allowed to draw subsistence allowance @ 50% of his basic pay w.e.f. the date he was granted bail in terms of Rule 24(3) of NALCO CDA Rules vide order of even number dated 22.9.2011.
2. Shri Srivastava vide letter dated 7.5.2012 made a request to the competent authority to review the suspension and the subsistence allowance.
3. On reviewing, the competent authority has ordered that the suspension of Shri Srivastava shall continue until further orders. Further, approval of the competent authority is hereby conveyed for enhancement of his subsistence allowance to 75% of his basic pay w.e.f. 1.3.2012 i.e. after expiry of 6 months from the date of drawing subsistence allowance @50% of his basic pay; in terms of provisions of Rule 24(2)(i) of NALCO CDA Rules. (Emphasis supplied)
12. After that, through his letter dated 7/20.05.2012 (Annexure A11), addressed to Honble Minister of Mines, Government of India, the applicant requested that since the investigating agency has already filed a final report under Section 173 of Cr.PC on 20.04.2011, his suspension may be revoked, and for the first time he raised the plea that as per the law as settled by the Honble Apex Court, suspension has to be reviewed by a Review Committee within 90 days of the effective date of suspension, and again within 180 days thereafter, which has not been done in his case and, therefore, his suspension becomes void, and may be revoked immediately. Further, he had stated in the said letter that since as per the offer of appointment issued to in his case, it was clearly mentioned that any item not covered would be governed by the Government rules, his suspension had to be reviewed under the Rules as prevalent under the Government of Indias CCS (CCA) Rules, 1965.
13. Through Para 4.10 of this OA, the applicant has, therefore, submitted that since there is no provision in the NALCO Conduct, Discipline & Appeal Rules for constituting a Review Committee, and to review the continued suspension of the applicant, the Government of India rules in this regard have to be applied. In this regard, he has placed on record a copy of the extract of the Government of Indias Office Memorandum dated 07.01.2004 (Annexure A/6). He has also pointed out through Paras 4.11 and 4.12 of the OA that in the case of Shri N.K.Sethi v. India Trade Promotion Organization, 118(2005) DLT 181 : 2005(80) DRJ 630 dated 22.02.2005 (Annexure A7), the Honble Delhi High Court has allowed the Writ Petition as Rule 39 of the ITPO Employees (Conduct, Discipline and Appeal) Rules provides that rules, instructions, orders and clarifications or any corresponding rules issued by the CVC or the Government would be applicable to the employees of the authority, and had rejected the contention of the ITPO that the provisions relating to time period for review, as prescribed under the CCS (CCA) Rules, 1965, would not be applicable in their case. He has submitted that following the same Judgement, the Honble High Court of Judicature at Madras also has in Writ Petition No.11087/2010 in the case of Shri G.Anil Kumar v. Tamilnadu Trade Promotion Organization, taken note of the same Rule 39 of the ITPO Employees (CDA) Rules, and it has been held that in the absence of any review of the order of suspension, as is statutorily required to be done, the impugned order of suspension is not valid after a period of 90 days from the date it was issued.
14. The applicant has, therefore, prayed that from a perusal of Para 2 of his letter of appointment, containing terms and conditions of his appointment, it is clear that in respect of any other item concerning the applicant which is not covered in the various paragraphs referred to in the appointment letter, the relevant rules and instructions of the Government of India are automatically applicable, and the applicant is governed by the rules prescribed/framed by the Government of India. He has, therefore, claimed protection of the Government of India OM dated 23.12.2003 (Gazette Notification dated 07.01.2004) whereby suspension is required to be reviewed within a period of 90 days from the effective date of suspension. He has pleaded that by applying the rules and instructions as issued by the Government of India, the effective date of the suspension of the applicant is 01.09.2011, after he was released on bail, and, therefore, his suspension was required to be reviewed by a duly constituted Review Committee on or before 30.11.2011, i.e., within a period of 90 days, after which his suspension become invalid, since no Review Committee has been constituted in his case, as it was incumbent upon the respondents.
15. In para 4.15 of his OA, the applicant has submitted that for the purposes of increasing the subsistence allowances under the NALCO Conduct, Discipline and Appeal (CDA) Rules, 1984, he had submitted representations on 13.09.2011 and 07.05.2012, as already mentioned above, because of which by issuing the order dated 17.05.2012 respondents increased his subsistence allowance. The applicant has taken a ground that while it is true that his appointment as Chairman-cum-Managing Director, NALCO, was as per the terms and conditions of appointment order dated 28.01.2010 (Annexure A/3), since the NALCO (CDA) Rules, 1984 are silent on the point of review of suspension, he would be eligible to the benefit of the Judgements of the Honble High Courts of Delhi and Madras in the cases of Shri N.K.Sethi (supra) and Shri G. Anil Kumar (supra). He had also submitted that since the investigation report of the CBI has already been completed, and the challan under Section 173 of the CrPC had already been filed on 20.04.2011 before the Special Judge/CBI, Delhi, there is no ground for continuing his suspension any longer. He had reiterated that Para 2 of the terms and conditions of his appointment letter dated 28.01.2010 states that in respect of any other item, which is not covered in the preceding paragraphs of the appointment order, he would be governed by the relevant rules and instructions of the CPSE/ Government, and, therefore, he has pleaded that his case may be deemed to be covered within the purview of the Rule 10 (5) & (6) of CCS (CCA) Rules, 1965, since the NALCO (CDA) Rules are silent on the aspect of review of suspension. In the result, the applicant had prayed for the reliefs as already mentioned hereinbefore.
16. The respondents filed their counter reply on 31.07.2012. They pleaded that as per para 1.15.1 of the terms and conditions of the applicants appointment letter issued by the Government, the NALCO (CDA) Rules, as applicable in respect of their non-workmen category of staff, would apply mutatis mutandis, in the case of the applicant, with the only modification that Disciplinary Authority in his case would be the President, as reproduced in para 5/above. It was submitted that Para 2 regarding terms and conditions of his appointment letter can be invoked only in the event of any item being found missing in the terms and conditions of his appointment, but since through Para 1.15.1 it has been clearly laid down that only NALCO (CDA) Rules are applicable in his case, with the modification of President being the Disciplinary Authority, Para 2 of the terms and conditions of his appointment is not enforceable. Such being the case, it was submitted that the DoPTs OM dated 23.12.2003 (Gazette Notification dated 07.01.2004) which now forms part of the Rule 10 of the CCS (CCA) Rules, 1965, is not applicable to him, and, therefore, the basic premise of the OA itself is erroneous, and the OA is based on incorrect interpretations and assumptions.
17. It was further submitted that there is no non-obstanate clause in NALCO (CDA) Rules, 1984, which may make Government rules, including CCS (CCA) Rules, applicable to the applicant, and hence the Judgements cited in the OA are not applicable in the instant case. It was further submitted that there are grave charges against the applicant of his having accepted illegal gratification from the bidders/suppliers of NALCO, and even the Honble Criminal Court had, while granting bail in September, 2011, observed that the bail has been granted only since the applicant is no more the CMD of NALCO, and is thus not in a position to tamper with the records. In the said circumstances, it was submitted that revoking his suspension, and reinstating him to a crucial and sensitive post like CMD, NALCO, where he would not only be once again privy to commercial files, but he would also get involved in active decision making concerning commercial transactions worth hundreds of crores, would not at all be in public interest, and accordingly, after review, the competent authority has decided that the suspension of the applicant shall continue.
18. It was further submitted that the stand of the applicant is in itself contradictory, as earlier he had prayed for the change of his Headquarters from Bhubaneshwar to New Delhi on the ground that he was required to attend the trial Court on a weekly basis, if now his request for reinstatement is accepted, it would invariably require him to be stationed again in Bhubaneshwar. The respondents had, therefore, submitted that when after consideration of the request received from the applicant, the order for release of subsistence allowance to him was issued on 22.09.2011, and later the order for enhancement of his subsistence allowance, with continuation of suspension, had been issued on 17.05.2012 (Annexure A/10), it amounted to review only, and, therefore, the OA did not lie. It was submitted that the applicants contention is irrelevant as the subject of continuation of his suspension has already been reviewed by the competent authority under the NALCO (CDA) Rules, and any Review Committee in terms of CCS (CCA) Rules, 1965 is not required to be constituted under the NALCO (CDA) Rules. It was further submitted that the applicant cannot be allowed to lay undue emphasis on the words other items in para 2 of the appointment letter, considering the fact that it has already been indicated clearly in the letter of appointment, through Para 1.15.1, that only the Conduct, Discipline and Appeal Rules of the Central Public Sector Enterprises (CPSE) [i.e. NALCO Rules in this case] would mutatis mutandis apply to him. It was pointed out that in the NALCO (CDA) Rules, there is no provision of any time limitation for review of suspension, and, therefore, no illegality has been committed in continuation of his suspension, and, therefore, the OA deserves to be dismissed.
19. The applicant filed a rejoinder on 08.08.2012, wherein he more or less reiterated his contentions taken in the OA. However, he submitted that NALCO is not his appointing authority, and his letter of appointment dated 28.01.2010 was issued by the Ministry of Mines, Government of India. It was further submitted that his DA, HRA, lease accommodation, other allowances and perks, performance related payments and superannuation benefits all had been stated to be covered by the Department of Public Enterprises OMs quoted therein, which clearly go to show that in his case all the OMs passed by the Government of India would apply, more so, when Clause 2 of the appointment letter clearly states that any other time which is not clearly covered by the preceding clause of the letter of appointment, in that event the applicant will be governed by the relevant Rules/Instructions of the CPSE/Government. It was submitted that Rule 23 (5) of the NALCO (CDA) Rules has been wrongly applied in his case, and in the absence of any procedure contemplating the review of an order of suspension, one should try to take aid of Rule 42, Residual Powers, would have to be applied, in which case the matter shall have to be referred to the Board of NALCO for decision. However, since as per Clause 1.15.1, the President is the Disciplinary Authority of the applicant, the Board of NALCO is no longer competent authority, and as a result of aforementioned Clause 1.15.1, the scope of Residual Powers of the Board under Rule 42 of the NALCO (CDA) Rules, 1984, is also not applicable. It was submitted that NALCO (CDA) Rules are not exhaustive and Rule 23, regarding suspension, is silent regarding review of the suspension, and, therefore, the procedure contemplated under Rule 10 of the CCS (CCA) Rules, 1965, would govern the field, and the safeguards enumerated therein have to be read to have been ingrained into Rule 23(5) of the NALCO (CDA) Rules, 1984.
20. It was further submitted that the respondents have contradicted themselves by on the one hand having stated that there is no scope for review of suspension under the NALCO (CDA) Rules, 1984, and on the other hand having submitted that his suspension was reviewed by the competent authority at the time of granting him subsistence allowances, and enhancing of such allowances. It was further submitted that Para 2 of the appointment letter issued to the applicant culls out an exception out of Para 1.15.1, and, therefore, it is within the nature of a caveat to the application of NALCO (CDA) Rules. It was further submitted that the chargesheet was filed by the investigating agency before the trial Court way back in 2011, and the charges are yet to be framed by the trial Court, and it was denied that the Special Judge, Delhi, had observed that the applicant is no more CMD of NALCO. It was submitted that since he has not been removed or terminated from service, in the period of his suspension, the applicant continues to retain his lien in the post of CMD, NALCO, in terms of appointment letter dated 28.01.2010, though his Headquarters had been changed. He had, therefore, prayed that in terms of the case law in the case of Shri N.K.Sethi (supra) and Shri G.Anil Kumar (supra), the suspension of the applicant has to be reviewed in terms of the provisions of the CCS (CCA) Rules, and since no such procedure has been adopted in the instant case, by convening a Review Committee, his suspension has become invalid, and because of the silence regarding provision of review of suspension of the applicant under NALCO (CDA) Rules, he cannot be kept under suspension in eternity. It was further submitted that under the CCS (CCA) Rules, review has to be by a Review Committee in accordance with the appropriate rules, and merely a review by the competent authority is not enough. It was, therefore, again prayed that the OA may be allowed.
21. The case was argued vehemently by both the sides, and both sides also prayed for Written Submissions being allowed to be filed, which were also filed by both sides within three days after the case was finally heard and reserved for orders.
22. In the written submissions both sides had more or less reiterated the above submissions and their arguments advanced and the applicant submitted that since NALCO (CDA) Rules have not expressly ousted the applicability of CCS (CCA) Rules, therefore, in the event that NALCO (CDA) Rules are silent on some point, the latter will automatically apply. Since Clause 5 of Rule 23 of NALCO (CDA) Rules lays down only the provision for revocation of the suspension, and it is totally silent on the review of suspension order, it was, therefore, reiterated that Rule 10(6) of the CCS (CCA) Rules, 1965 has to be necessarily applied in this case, and the respondents have wrongly contended that the applicant had sought a review of his suspension order and subsistence allowance under Rule 24 of the NALCO (CDA) Rules, as a plain reading of Rule 24 reveals that it was meant only for enhancement of the subsistence allowance. It was further submitted that since NALCO is indeed wholly owned and controlled by the Central Government, therefore, it is unconscionable and impermissible for the respondents to contend that the Central Government rules do not apply to it, especially so when its own rules are silent on any point.
23. It was submitted that the respondents have incorrectly argued that the reason for the Delhi High Court ruling in favour of Shri N.K.Sethi (supra) was the existence of Rule 39 of the ITPO Rules, pari-materia provision, for which does not exist in NALCO (CDA) Rules. It was submitted that the position is actually identical in NALCO case and para XXV of Manual on Delegation of Powers of NALCO stipulates that in the absence of any specific provision, guidelines/guidance may be drawn from FRs and SRs, Department of Public Enterprises guidelines and CVC guidelines, etc. It was further submitted that since the respondents have already filed a copy of the chargesheet since filed in the CBI Court on 20.04.2012, it would amply go to prove that the investigation in the said case is completed against him, and that there is no reason or cause for keeping the applicant under continued suspension, and that since any disciplinary proceedings have not been initiated or conducted by the respondents against the applicant, he had, therefore, reiterated his prayer in the OA, i.e., suspension order dated 26.02.2011 deserves to be quashed in view of the violation of his fundamental rights under Articles 14 and 21 of the Constitution, as well as his rights as a Central Government employee under Rules 10 (6) & (7) of the CCS (CCA) Rules, 1965, and based on the Judgement and ratio of the Honble Delhi High Court in N.K.Sethi (supra) and the observations of the Honble Apex Court in Union of India & Others v. Dipak Mali, (2010) 2 SCC 222.
24. Similarly, in the Written Submissions filed on behalf of the respondents, their stand point was reiterated that the applicant is not a Government employee to whom CCS (CCA) Rules, 1965 can be applied, and that it is evident from Clause 1.15.1 of the terms and conditions of the applicants appointment that NALCO (CDA) Rules alone are applicable in the case of the applicant, with the modification that President being the Disciplinary Authority in the case of the applicant. It was further pointed out that the applicant himself had sought review of his suspension and of grant of subsistence allowances only under Rule 24 of the NALCO (CDA) Rules, 1984, and orders of the respondents were also issued under the same rules, which goes to show that the applicant himself is also fully aware of the fact that he is subject to only NALCO Rules and not the CCS (CCA) Rules.
25. It was finally reiterated that the employees of NALCO, including its Directors and CMD, are not Government employees, but are employees of Public Limited Company, though subject to the various orders concerning Central Public Sector Undertakings issued by the Department of Public Sector Enterprises, Govt. of India, but that does not mean that the employees of Central Public Sector Enterprises become Government employees.
26. Heard. We have given our anxious considerations to the facts of the case. The applicant has himself mentioned in Para 4.12 of his OA that in the ITPO Rules there was a non-obstante clause regarding applicability of the rules framed by the Central Vigilance Commission, as well as the Government of India, and by applying the said Rule 39 of the ITPO Employees (CDA) Rules, relief had been granted by the Delhi and Madras High Courts in the case of N.K.Sethi (supra) and Shri G. Anil Kumar (supra). We also find that the applicant is fully aware of the applicability of only NALCO (CDA) Rules, 1984, to him, as in all his prayers to the respondents, dated 03.09.2011, 13.09.2011 and 07.05.2012, he has only sought for grant of subsistence allowance and then enhancement of his subsistence allowance, in terms of the Rules 23 and 24 of the NALCO (CDA) Rules, 1984. The respondents have also, while passing the initial order sanctioning the subsistence allowance on 22.09.2011, and later on enhancing his subsistence allowance on 17.05.2012, taken recourse to only the provisions of Rule 24 of the NALCO (CDA) Rules. It is only after his subsistence allowance was enhanced to be 75% of the basic pay that in his representation dated 7/20.05.2012 (Annexure A/11) the applicant had for the first time raised the issue of his suspension not having been reviewed by a Review Committee.
27. Rules 23, 24 and 25 of the NALCO Rules, 1984, which deal with suspension, subsistence allowances and treatment of the period of suspension respectively, are quite clear in themselves as are reproduced below:
Rule 23 Suspension:
(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Management by general or special order may place an employee under suspension:
(a) Where a disciplinary proceeding against him is contemplated or pending; or
(b) Where a case against him in respect of any criminal offence is under investigation or tril.
(2) An employee who is detained in custody, whether on criminal charge or otherwise for a period exceeding 48 hours shall be liable to be suspended with effect from the date of detention, by an order of the appointing authority, and shall remain under suspension until further orders.
(3) Where a penalty of dismissal or removal from service imposed upon an employee is set aside on appeals or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further orders.
(4) Where a penalty of dismissal or removal from service imposed upon a employee is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removed was originally imposed, the employee shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal or removal and shall continue to remain under suspension until further orders.
(5) An order of suspension made or deemed to have been made under this Rule may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
Rule 24 Subsistence Allowance:
(1) An employee under suspension shall be entitled to draw subsistence allowance equal to 50 per cent of his basic pay provided the disciplinary authority is satisfied that the employee is not engaged in any other employment or business or profession or vocation. In addition he shall be entitled to Dearness Allowance admissible on such subsistence allowance and any other compensatory allowance of which he was in receipt on the date of suspension provided the suspending authority is satisfied that the employee continues to meet the expenditure for which allowance was granted.
(2) Where the period of suspension exceeds six 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 six months as follows;
(i) The amount of subsistence allowances may be increased to 75 percent of basic pay and allowances thereon if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not attributable to the employee under suspension.
(ii) The amount of subsistence allowances may be reduced to 25% per cent of basic pay and allowance thereon if in the opinion of the said authority, the period of suspension has been prolonged due to the reasons to be recorded in writing, directly attributable to the employee under suspension.
(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 decided to continue the suspension, the employee shall be entitled to subsistence allowance from the date he is granted bail.
Rule 25 Treatment of The Period of Suspension:
(1) When the employee under suspension is reinstated, the competent authority may grant him the following pay and allowances for the period of suspension:-
(a) If the employee is exonerated and not awarded any of the penalties mentioned in Rule 26, the full pay and allowances which he would have been entitled to if he has not been suspended, less the subsistence allowance already paid to him, and
(b) If otherwise, such proportion of pay and allowances as the competent authority may prescribes.
(2) In a case failing under sub-clause (a) the period of absence from duty will be treated as period spent of duty. In case failing under sub-clause (b) it will not be treated as period spent on duty unless the competent authority so directs.
28. A combined reading of Rules 23, 24 and 25 of the NALCO (CDA) Rules would clearly go to show that these three rules deal with all eventualities relating to the suspension, subsistence allowances to be granted during suspension, and the treatment of the period of suspension. It is, therefore, clear that had the applicant himself been acting and applying these Rules as the CMD, NALCO, he could have continued any employees suspension indefinitely, and could have denied any review of suspension to any of the non-workman category staff employees of NALCO by an application of Rules 23, 24 and 25 of the NALCO (CDA) Rules, and it is also clear that having dealt with all eventualities concerning suspension of the employees, the NALCO (CDA) Rules do not include any non-obstante clause parallel to Rule 39 of the ITPO Employees (CDA) Rules, the presence of which clause had formed the basis of the Judgments in the cases of S/Shri N.K.Sethi (supra) and G. Anil Kumar (supra). We also find that the applicant cannot also be provided the benefit of the Judgement of the Honble Apex Court in the case of Dipak Mali (supra) as the applicants case is not on all fours with the case which was before the Honble Apex Court.
29. In the result, the applicant cannot be allowed to plead that para 1.15.1 of his letter of appointment did not bring his case fully and squarely within the applicability of NALCO (CDA) Rules, 1984, and that he cannot be allowed to plead that in the absence of a specific provision parallel to Rule 10(6) & (7) of the CCS (CCA) Rules in the NALCO (CDA) Rules, the presence of such a provision has to be presumed to be ingrained within such rules by this Tribunal. This Tribunal can only interpret the Rules and the law, and cannot undertake the exercise of Rule making, and in the instant case, the above cited Rules 23, 24 and 25 of the NALCO (CDA) Rules, 1984, clearly do not allow us to consider the prayer of the applicant favourably.
30. In the result, the OA is dismissed. There shall be no order as to costs.
(Sudhir Kumar) (G.George Paracken) Member (A) Member (J) /nsnrgp/