Central Information Commission
Shri Anil Kumar Dhyani vs Department Of Personnel & Training ... on 20 November, 2008
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00743 dated 27.6.2007
Right to Information Act 2005 - Section 19
Appellant - Shri Anil Kumar Dhyani
Respondent - Department of Personnel & Training (DoPT).
Facts:
By an application of 24.11.06 Shri A. K. Dhyani of Mayur Vihar, Delhi applied to the Dy. Secy. (P&A), Dep't. of Personnel & Training, seeking the following information"
"1. Whether a under Suspension Technical Industrial person is eligible or not to get Traveling or Conveyance Allowance on regular monthly basis along with his Subsistence Allowance even though he is traveling to his department only on those departmental inquiry proceedings dates which was fixed by his Inquiry Officer & not on a regular basis? If yes, then kindly provide me Certified copy of that order.
2. If a under Suspension Technical Industrial person is not eligible to get Traveling or Conveyance Allowance with his Subsistence Allowance then whether he is eligible to get Traveling or Conveyance Allowance especially of those particular dates of departmental inquiry proceedings which was attended by him? If yes, then kindly provide me Certified copy of that order and also tell me that at what rate of charges he is entitled to get his Conveyance Allowance.
3. If a under Suspension Technical Industrial person is eligible to get Traveling or Conveyance Allowance with his Subsistence Allowance especially of those particular dates of departmental inquiry proceedings which was attended by him and if there is some gap (let us say 2 months) is created between the present and next date of departmental inquiry proceedings then whether the person is eligible to get Conveyance Allowance for those two months gap period?
4. Whether it is justified and legally right that Administration is paying monthly Subsistence Allowance to a under Suspension Technical Industrial Person (Myself) after pre- audit whereas all the other regular Industrial persons are getting their monthly salaries as Post-audit? It is important 1 to mention here that this pre-audit process was applicable on me only otherwise it was never happened with any other under suspension industrial person for the last 59 years.
5. Whether I am eligible or not to g et my monthly Subsistence Allowance on 1st day of every month as all the other regular Industrial persons are getting their monthly salaries on 1st of every month? Because due to pre-audit process I am getting my monthly Subsistence Allowance around 3rd or 7th of every month.
6. Whether the Administration has powers and authority to decease the rate of Subsistence Allowance after two years and for two years initially granted to the person at the time of hi suspension without giving any satisfactory and sufficient reasons/ evidences/ clarifications and without any fault of the person?
7. Whether a under suspension Industrial person I eligible to get 75% of his salary as his Subsistence Allowance? If yes, then kindly provide me Certified copy of that order. Kindly also tell me whether there is any time limit period in the Rules by which after the time limit period it is mandatory and compulsory for any Administration to give 75% salary to suspended employee because I am under suspension from Sep 2001 and till date I am getting only 50% salary as Subsistence Allowance & Administration is not increasing my Subsistence Allowance up to 75% even after my repeated reminder letters for the last 5 years. Kindly also suggest me how can I get 75% Subsistence Allowance.
8. If there are any latest judgments of High courts or Supreme Court are available on records regarding mandatory provision of providing 75% salary as Subsistence Allowance to under Suspension Industrial person after if any time limit period mentioned in the Rules then kindly provide me the Citations of those judgments with their cause titles."
This application was transferred to the Department of Expenditure on 29.11.06 on the question regarding traveling allowance and conveyance allowance, as the subject was stated to be related to Ministry of Finance, Department of Expenditure. Hence the transfer u/s 6(3).The Dep't. of Expenditure on the other hand refused to give information as conveyed through a 2 letter of Ms. Renu Jain Dy. Secy. dated 28.12.06 stating that the question was asked in respect of technical industrial personnel, a subject with which the Department of Expenditure does not deal, but instead of transferring the application as mandated u/s 6(3) of the RTI Act, CPIO Ms. Renu Jain simply advised the applicant to make a fresh application to Department of Public Enterprises. This applicant Shri Dhyani, however, did so on 3.1.07 to which he received a response from the Dep't. of Public Enterprises on 11.1.07 from Shri G.S.Bothyal, Director & CPIO stating as follows:
"Fundamental Rules/ Supplementary Rules (FR/SR) issued by Department of Personnel & Training/ Department of Expenditure is applicable in the instant case. You are advised to consult Department of personnel & Training/ Department of Expenditure in this regard."
Applicant Shri Dhyani was then obliged to apply once more to the Dep't. of Expenditure on 25.1.07 with a copy to the Department of Personnel & Training. The Department of Personnel & Training responded on 9.2.07 repeating that the information could be provided by the Dy. Secy., Dep't. of Expenditure. The Dep't. of Expenditure sought further clarifications in their letter of 12.2.07 addressed to appellant, asking him to clarify his status i.e. whether he was a Central Govt. employee. Upon this a clarification was provided by appellant in his letter of 17.2.07 in which he further pleaded as follows:
"The most important thing I would like to bring in your notice is that I have approached DOPT on 24.11.2006 for the same information's desired to me as to you and till date approx. three months has already been passed but only advices/ clarification letters have been received to me instead of any satisfactory reply from any department."
Nevertheless, the Dep't. of Expenditure again transferred this matter to the DoPT on 13.5.07. In the meantime, Shri Dhyani moved his first appeal before the First Appellate Authority DOPT on 9.4.07 upon which he received a response on 26.4.07 from Shri P. Prabhakaran, Dy. Secy., Govt. of India as follows:
3"Information on Rules governing the grant of subsistence allowance, with which the DoP&T is concerned, has already been furnished to you by the CPIO. A copy of which is again enclosed."
To this was appended a copy of FR 53(1) which deals with the question of entitlement of Govt. servants under suspension or deemed to have been placed under suspension. In this response, however, it is clarified that liability for T.A. etc. are the concern of the administrative Ministry and not of the DOPT. The issue before us clearly is, therefore, as to who is responsible for providing information to appellant Shri Dhyani on the entitlement of suspended officials on various allowances.
The appeal was heard on 20.11.08. The following are present :
Apppellant Shri Anil Kumar Dhyani.
Respondents Ms. Jyoti Mathur, APIO, Under Secretary.
Ms. Simi R. Nakra, Dir, DoPT.
Shri P. Prabhakaran, Deputy Secretary, DOPT. Shri A. Balaram, Under Secretary, Under Secretary, DOPT. Ms. Renu Jain, Deputy Secretary, DoPT (DO Expd).
Representatives of the DoPT submitted that whereas it is correct that the Dep't. of Personnel is concerned with the administration of service rules, D.A. and other compensatory allowances including traveling allowances are administered under business rules, the responsible authority in this case being Dep't. of Expenditure. He submitted a copy of the relevant extract of the Business Rules 23(a)(iv) which reads as follows:
"23.(a)The administration of all service rules including F.Rs.
except-
XXXX
(iv) dearness allowance and other compensatory allowances and traveling allowances. "4
Ms. Renu Jain on the other hand submitted that all such FRs, which are included as a result of the intervention of the Dep't. of Expenditure are mentioned in the FR as being at the instance of Finance Ministry. In the present case the question of journey during suspension, or giving evidence, or attending a court of law is covered by Supplementary Rule 153 (a) of which she submitted a copy. This supplementary rule reads as follows:
"S.R. 153 A. A Government servant under suspension who is required to perform journey to attend the departmental enquiry may be allowed traveling allowance as for a journey on tour from his headquarters to the place where the departmental enquiry is held or from the place at which he has been permitted to reside during suspension to the place of enquiry, whichever is less. No traveling allowance will, however, be admissible if the enquiry is held at the outstation at hi own request.
Note:- His traveling allowance will be regulated by the grade to which he belonged prior to his suspension.
GOVERNMENT OF INDIA'S ORDERS (1) T. A. for appearing before Police and Court- The Government of India have had under consideration the question whether, and if so at what rates, traveling allowance should be allowed to Government servants in the following two types of cases:-
(i) Where a Government servant, whether he is under suspension or not, performs journeys to attend Police/ Special Police Establishment enquiry in connection with a case in which he is suspected to be involved.
(ii) Where a Government servant undertakes journeys during suspension for appearing in a Court and reinstated in service or would have been reinstated in service but for death or his having attained the age of compulsory retirement or being allowed to retire voluntarily.
(2) As regards case of this first type, it has been decided that traveling allowance as for a journey on tour may be allowed, to a Government servant for such journeys provided that 5 they are performed under the direction of, or with the approval of, the Head of Office in which he is for the time being employed, or was employed before suspension."
A copy of these rules was given to appellant Shri Dhyani.
DECISION NOTICE While the information sought by appellant Shri Dhyani has now been met, we find on the conclusion of arguments, that neither the DOPT nor Dep't. of Expenditure is willing to accept responsibility for the administration of S.R. 153(a), which is the Supplementary Rule to the F.Rs. governing payment of TA and other allowances to an official under suspension. It will appear, therefore that this lacuna would require to be rectified. A copy of this decision may, therefore, also be endorsed to Shri Chandrasekhar, Cabinet Secretary for consideration by Cabinet Secretariat to determine whether there is such a lacuna, and if so, how this can be rectified, and if not, the concerned Ministries be informed accordingly.
On the other hand we find that the answer to the question of a simple nature has been delayed several months because various departments were unable to make up their minds as to where the information can be had. In this matter the most obvious default is that of CPIO Ms. Renu Jain, Dep't. of Expenditure who instead of transferring the matter within five days, if she considered that was not her responsibility, has taken a full month to do so and in doing that also actually refused the information advising appellant Shri Dhyani to make a fresh application but in another department, in this case the Dep't. of Public Enterprises. Because time limits have not been infringed and also because there is no trace of malafide or knowingly providing incomplete information to appellant Shri Dhyani, there will be no penalty. CPIO Ms. Renu Jain has also assured us that this being one of the initial applications, the performance of the Dep't. of Expenditure in processing subsequent applications 6 is much improved. However, we cannot fail to take adverse note of the manner in which this application had been handled particularly in the Department of Expenditure. If, as Ms. Renu Jain assures us, the performance of the Department has since improved, this is a welcome development. However, the CPIO is cautioned that any repetition of such delays can bring with it a penalty up to Rs. 25,000/-.
With the handing over of the relevant rules, an exercise that could have been done much earlier, the appeal is thus allowed.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 20.11.2008 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 20.11.2008 7