Central Administrative Tribunal - Delhi
Shri R.D. Gupta vs Union Of India & Ors Through on 15 January, 2015
Central Administrative Tribunal Principal Bench OA No. 2041/2009 With OA No. 751/2013 Order Reserved on: 21.08.2014 Order Pronounced on:15.01.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Shri R.D. Gupta, Commissioner of Income Tax (Appeal) Ajmer, Rajasthan, Presently residing at C-803, HEXTAX Commune, Sector-43 Part, Gurgaon (HR) Applicant (Applicant in person) VERSUS Union of India & Ors through: 1. The Secretary, Government of India, Ministry of Finance, Deptt. Of Revenue, North Block, New Delhi-110001 2. The Chairman, CBDT, Ministry of Finance, Deptt. Of Revenue, North Block, New Delhi-110001 Respondents (By Advocate: Shri RN Singh) O R D E R Dr. B.K. Sinha, Member (A):
These two OAs, namely OA No. 2041/2009 and 751/2013 have been heard together as they relate to a common subject in continuum of each other and are being disposed of by a common order. We do not propose to deal with the background of these cases as the same have been exhaustively stated in the order of this Bench dated 11.10.2011 in OA No. 2041/2009 and subsequently by Honble High Court of Delhi in their order dated 16.1.2013 in WP(C) No. 248/2013. We feel that re-stating the facts would not only add to the bulk of the order but may also lead to the confusion on account of variations that may crop up in the process. Therefore, we start this decision from where the Honble High Court has left off vide order of remand dated 16.1.2013:-
11. Accordingly, we dispose of the writ petition substituting direction No.ii issued by the Tribunal with a mandamus to the respondents to release the subsistence allowance to the petitioner for the period he remained under suspension as per orders already passed on May 14, 2004, August 06, 2004 and August 07, 2007. The payment would be paid within four weeks from today together with simple interest @6% per annum from the dates the amounts were payable till payment is made. We restore OA No. 2041/2009 for fresh adjudication by the Tribunal on the disputes pertaining to: (i) salary payable to the petitioner after the suspension order was revoked; (ii) petitioners entitlement to receive pay in the revised pay-scales as per the recommendations of the 6th Central Pay Commission; and (iii) interest on delayed payments if any found to be payable.
2. We may observe at this juncture that the order of the Honble High Court has simplified the task for us. The three periods mentioned in the order of the Honble High Court have become issues. We take them one by one for deliberations:-
(i) The first issue is the salary payable to the applicant after suspension was revoked.
(ii) The order of this Tribunal dated 11.10.2010 has further divided it into two periods i.e. 08.08.2007 to 11.10.2007 when the applicant had not joined any place of duty and 12.10.2007 to 29.11.2009 when the applicant had been posted to ITAT but had not joined there and instead he claims to have joined at Ajmer. The order under reference dated 11.10.2011 had directed the competent authority to examine that whether it was to be treated as unauthorized absence.
3. Insofar as the period from 8.8.2007 to 11.10.2007 is concerned, we need to look at the order of suspension dated 14.5.2004. This order states that a case against the applicant in respect of a criminal offence was under investigation; the applicant was placed under suspension with immediate effect under orders of the President under Rule 10(1) of the CCS (CCA) Rules, 1965; during the period, this order remains in force, the headquarters of the applicant would be Ajmer; and the applicant would not leave the headquarters without having obtained the prior permission of the Chief Commissioner of Income Tax, Jaipur. The order of revocation of suspension is dated 8.8.2007. It merely states that the competent authority having reviewed the suspension of the applicant, has decided to revoke the same. For the sake of easy reference, the relevant part of the order is being reproduced as below:-
The Competent Authority has reviewed the suspension of Shri R.D. Gupta, on the recommendation of the Review Committee, as provided in Government of Indias DOP&Ts notification GSR No.2 dated 03.01.2004 and has, after carefully considering all the facts and circumstances of the case decided to revoke the suspension of Shri R.D. Gupta. A copy of this order has been provided to CCIT, Jaipur in the following endorsements:-
1) The Chief Commissioner of Income Tax, Jaipur along with the copy meant for Shri R.D. Gupta, Commissioner of Income TAX (A), Ajmer and with a request to serve the same on this officer and send acknowledgment of receipt by the officer concerned.
2). The Director General of Income Tax (Vig.), New Delhi.
3). The Director, Ad-VI, Central Board of Direct Taxes, New Delhi.
4. Ad-VI(A)/DT/Per). Central Board of Direct Taxes, New Delhi
5. Guard file. The order of revocation of suspension appears to have been served upon the applicant on 28.8.2007. It is significant to note that the order was served at the residence of the applicant in Gurgaon. The next order on record is dated 11.10.2007 whereby the applicant has been posted as CIT (ITAT)-II, Chennai and Vice one RS Meena, who has been posted in his place at Ajmer, which has been shown to be vacant. The applicant has drawn attention of the Tribunal to this fact that the order was communicated on 28.8.2007 (Annexure 5). The applicant further states that he submitted an application dated 12.10.2007 to the Chief Commissioner of Income Tax (Udaipur) for grant of casual leave after attending and assuming his duties in his capacity as CIT (Appeal) Ajmer. A copy of this communication has been placed at Annexure 6 which reads as follows:-
No. CIT(Appeals)/AJM/2007-08/ Dated: 12.10.2007 The Chief Commissioner of Income-tax, Udaipur Sir, Sub: Casual Leave Kindly allow me casual leave for 3 days from 15.10.2007 to 17.10.2007 as I am suffering from Fistula, which was operated upon twice in the past and the same has erupted again since last 15 days.
4. From narration of events, a deduction can be made that when the applicant was placed under suspension, he was directed not to leave the headquarters without permission. However, the order of revocation of suspension had to be served at his residence at Gurgaon implying thereby that he was not available at his headquarters at Ajmer. There is nothing to explain that when suspension had been revoked on 8.8.2007 and by his own admission, the order was served on 28.8.2007 then what took him so long to report to the headquarters on 12.10.2007. It is evident from the above that the applicant had not submitted any documentary evidence to show that he had taken permission from the competent authority to leave the headquarters. During the course of arguments, the applicant had submitted orally that he felt a threat to his life compelling him to stay at Gurgaon. The applicant being a senior officer had always available protection of law to him whenever he would seek the same. We do not find him reporting anywhere to the competent authorities under law for protection, neither do we find on record permission of the competent CCIT (Jaipur) for staying outside headquarters. This permission too could have been given only for short periods and not for staying outside alone. Therefore, we are of the opinion that the applicant had willfully and deliberately absented himself from the headquarters fixed for him during the period he remained under suspension under proper authorization. Therefore, this period to be treated as unauthorized absence and no payment of salary can be made to him.
5. We now take up the period from 12.10.2007 to 29.11.2007 for which the applicant had been posted to ITAT but had not joined there. Instead he claims to have joined at Ajmer. For the sake of clarity, the submission of the applicant needs to be reproduced as per his submissions in the OA:-
8. That the applicant requested after joining as CIT (Appeal) Ajmer for proper sitting arrangement and supporting staff to assist him to discharge his official duties. However, the respondents by their letter dated 22.10.2007 enclosed a copy of transfer order dated 11.10.2007 posting the applicant to Chennai as CIT (ITAT)-II. However, the respondents disclosed the station as revocation of suspension from where the applicant was being transferred out from, which is unheard of. A copy of the letter dated 22.10.2007 is annexed herewith and marked as AnnexureA7.
6. The applicant states that he found a serious lacuna in the transfer order dated 11.10.2007 and requested the respondents to correct the defective and improper uncompliable orders vide letter dated 31.10.2007. The correspondence of the applicant to the Chairman, CBDT has been placed at Annexure 8 and is extracted as under:-
b) In the above mentioned transfer order dated 11.10.2007, which has been passed after over two months of the order of revocation of suspension, it has, apparently, wrongly been mentioned that this transfer was from revocation of suspension to Chennai. It is, thus, obvious that the transfer order in question is defective/improper. If at all, any transfer was to be there, it could only be from CIT (Appeal), Ajmer, to Chennai. Accordingly, I seek due clarification and, obviously, I will be able to comply with the order only thereafter.
2. In the end, I may be allowed to respectfully state that revocation of my suspension as per order itself, was on the recommendation of Review Committee as provided in GOI, DOPTs notification GSR No.2 dated 03/01/2004 after carefully considering all the facts and circumstances of the case. Obviously, this revocation of suspension was not the result of compliance of order dated 22.06.2007 of Honble CAT, Jaipur Bench, Jaipur. In OA No. 219/2007, which was, otherwise, directed to be implemented within 15 days i.e. by 07.07.2007, both for the purpose of revocation of suspension as well as posting. For implementation of any order of Honble CAT, there is no role of any Review Committee or any reference to any instruction like above quoted instructions dated 03.01.2004. Subsequently, we find that the applicant did not comply with the order and instead filed another representation for cancellation of the transfer order vide his communication dated 1.11.2007. The very subject of the application reads:-
Sub: Request for cancellation of transfer in view of Instructions of GOI, DoPT in respect of couple cases and other allied factors - reg
7. The cancellation of the order has been sought on the grounds of posting of the wife as Additional ETC, Haryana Institute of Public Administration, Gurgaon, ill health of mother and marriage of his children and his own suffering from bronchial asthma. The applicant states that he continued at Ajmer as there was no accommodation provided to him, and, therefore, he requested the authorities to provide accommodation to him. In between, the applicant had also made visit to Delhi for some proceedings unrelated to the present subject. Thereafter it appears that the applicant has been making frequent representations revocation of the transfer order, release of full pay and allowances for complete period. Since the dates of these applications have already been brought in the narration of events made by this Bench in its earlier order dated 11.10.2011 and by the Honble High Court of Delhi in its order dated 16.01.2013, we need not make further mention of the same. In between we also find repeated prayers for transfer to some places close to Haryana, for instance, one dated 15.6.2009 (A/17, page 66 of the paper book).
8. We are constrained to take a dim view of the behavior of the applicant. When a transfer order is issued, it is expected that it shall be obeyed. He found two minor flaws in the transfer orders which do not in our opinion affect the validity, legality or enforceability of the order in the least. These two mistakes were that he had been addressed as CIT (Appeal) Ajmer in the order dated 08.08.2007 revoking his suspension, and should have been addressed as such, and not on revocation of suspension and that the suspension should have been treated revoked under orders of CAT and not under orders of the Review Committee. We do not wish to go into the admissibility of these charges or the validity of these assertions. However, what strikes us is that these two issues do not affect the validity of the order in the least, even on a cursory examination. It appears that the applicant wanted to be posted to Haryana for which he was making repeated representations. He also admitted that he was not staying during this period at the headquarters and was visiting the office off and on where he would spend 15 to 20 minutes at the table of some assistant. We take note of the argument of the learned counsel for the respondents that once the posting of the applicant had been made to Chennai, there was no cause for the respondents to have allocated an office to the applicant.
9. The umbilical cord of the applicant stood severed with his order of transfer. We also do not accept the argument of the applicant that he had not joined at Chennai because no formal order of relieving him had been issued. We had asked the parties to produce any order of the Government which shows the requirement of relieving order in case of senior officers of the Income Tax Department. However, none has been produced.
10. So far as we are aware there is a movement order in the uniformed forces which authorizes incumbents to relinquish the charge of the post in order to take up the next assignment. However, there is no requirement of formal relieving order. The order of the Government is sufficient in itself. We have also looked at transfer and placement guidelines for officers of the Indian Revenue Service, Central Board of Direct Taxes, which regulates the transfer policy matters. There is no instruction relating to relieving of officers of the rank of Commissioners of Income Tax. Admittedly, these guidelines were issued in the year 2010 and became binding with the date of their issue on 16.2.2010. In absence of there being any instructions issued by the Government of memoranda authorizing such relieving, we are compelled to hold that such instructions do not exist. However, we are totally convinced that the applicant had deliberately avoided the order of transfer on flimsy ground as he was expecting a revised order posting him anywhere close to Gurgaon. The order of this Tribunal dated 11.10.2011 has already gone into all cases referred to by the rival parties. In the process, reference is made to the case of SC Saxena Vs. UOI, (2006) 9 SCC 583 in some detail wherein the Honble Supreme Court has clearly held that a Government servant cannot disobey the transfer order by not reporting at the place of posting and then go to court to delay his grievances. The Honble Supreme Court was of the firm opinion that this tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Similar view has been expressed in a number of cases, including Union of India Vs. S.L. Abbas, 1993(4) SCC 357 holding that it is the prerogative of the employer to decide where an employee will work. This very Tribunal has consistently held that the spectacle of senior officials stooping to search dilatory tactics to avoid transfer is something which needs to be seriously discouraged.
11. We entirely echo in this sentiment. The senior officers should never forget that they are also a part of the Government and they have the responsibility of keeping the Government running well. Where senior officers disobey the transfer orders for years together on such flimsy grounds, they are not to be encouraged and dealt with under law. We, therefore, hold that this period is entirely one of defiance to the lawful Government orders and recoursing to subterfuge in order to defeat the transfer order and hence, we have no alternative but to declare it as one of unauthorized absence. We also hold in the same breath that if the payments were to be made for this period, it would amount to infliction of punishment upon the respondents for making payment to an employee who has been defiance to their lawful diktat. This issue is accordingly answered.
12. Now, we come to the period 30.11.2009 onwards. Here, there can be no dispute after the applicant had joined Chennai in compliance to the Government orders dated 30.11.2009 till his superannuation i.e. 30.09.2011, as this period has been spent on duty. No doubt, for this period the applicant shall be entitled for pay and allowances.
13. Now we come to the issue that whether the applicant would be entitled to draw the benefits of the 6th CPC report in the revised pay scale as per its recommendations. This is dealt with under FR-53. There are two possibilities in the revision of pay while under suspension. In the first, the revision of pay does take place from the date prior to the date of suspension. Here, the directive is that the Government servant should be allowed to exercise option under FR-23 even if the period during which he has to exercise option, falls within the period of suspension. In the second case, the revision takes effect from the date falling within the suspension. The view of the Government is that where the Government servant retains lien on his substantive post, he should be allowed to exercise option under FR-23. Even under law, the benefit of the option will, however, practically accrue to him in respect of suspension only after reinstatement, depending on the fact that whether the period of suspension is treated on duty or not. For the sake of easy reference, the Government OM dated 27.8.1958 is extracted as below:-
(2) Revision of scale of pay while under suspension.-A question having arisen as to whether a Government servant under suspension might be given an option to elect any revised scales of pay which might be introduced in respect of the post held by him immediately prior to suspension is revised, the Government of India have decided as follow:-
1. Cases in which the revised scale of pay takes effect from a date prior to the date of suspension.
In such cases the Government servant should be allowed to exercise the option under FR 23 even if the period during which he is to exercise the option falls within the period of suspension. He will be entitled to the benefit of increase in pay, if any, in respect of the duty period before suspension, and also in the subsistence allowance, for the period of suspension, as a result of such option.
2. Cases in which the revised scale of pay takes effect from a date falling within the period of suspension.
(a) Under suspension a Government servant retains a lien on his substantive post. As the expression holder of a post occurring in FR 23 includes alsoa a person who holds a lien or a suspended lien on the post even though he may not be actually holding the post, such a Government servant should be allowed the option under FR 23 even while under suspension. The benefit of option will, however, practically accrue to him in respect of the period of suspension, only after his reinstatement depending on the fact whether the period of suspension is treated as duty or not.
(b) A Government servant who does not retain a lien on a post the pay of which is changed, is not entitled to exercise the option under FR 23. If, however, he is reinstated in the post and the period of suspension is treated as duty, he may be allowed to exercise the option after such reinstatement. In such cases, if there is a time-limit prescribed for exercising the option and such period had already expired during the period of suspension, a relaxation may be made in each individual case for extending the period during which the option may be exercised.
FR-23 also needs to be quoted in order to develop parity:-
F.R.23. The holder of a post, the pay of which is changed, shall be treated as if he were transferred to a new post on the new pay:
Provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old scale, or until he vacates the post or ceases to draw pay on that time-scale. The option once exercised is final. Here, we are to take the view that the applicant being senior official in the Revenue Department holds a permanent lien. The Honble High Court vide its order dated 16.01.2013 in W.P. (C) No.248/2013 have already ordered for release of his subsistence allowance for the period he remained under suspension as per orders already passed on 14.5.2004, 06.08.2004 and 07.08.2007 with interest @ 6% per annum from the dates the amounts were payable till payment is made. Hence, for this period, in view of afore considerations, the applicant will be entitled to revised Pay under 6th CPC provided he exercises his option under FR-23 and thereafter.
14. Insofar as the third issue regarding payment of interest is concerned, it has to be examined in view of our findings in respect of issue no.1. We have clearly found the period as one of unauthorized absence. Therefore, the question of payment of interest on delayed payments would not arise.
15. In conclusion, we hold that in respect of issue no.1, we have found the applicant deliberately disobeying the lawful Government orders on flimsy pretexts and untenable grounds in order to get a posting of choice. We have further found that there was no justification whatsoever for the applicant to linger on at Ajmer in defiance of lawful orders of the Government and therefore, the entire period has to be taken as one of unauthorized absence for which no payment is to be made. In respect to the second issue, we clearly found that the applicant would be entitled to revised pay scales under 6th CPC Report from the date it has been made operative i.e. 1.1.2006 provided he exercises his option under FR-23. In view of the findings in respect of issue No.1, the question of entitlement to interest for the period does not arise. Accordingly, the OA is disposed of in the above terms. No order as to costs.OA 751/2013
16. This OA has been filed in compliance to the directions of the Honble High Court, vide order dated 15.02.2013 in Petition Application No.78/2013 in WP(C) No.248/2013, which reads as follows:-
(I) The date September 30, 2012 noted in paragraph 3 and 4 of our decision dated January 6, 2013 be corrected to read as September 30, 2011.
(II) The issue whether the petitioner worked after he joined at the Chennai office on November 30, 2009 till he superannuated on September 30, 2011 with respect to petitioners claim for payment of salary shall be decided by the Central Administrative Tribunal and for which the writ petitioner is permitted to file a Miscellaneous Application before the Tribunal containing relevant pleadings in respect of his claims granting liberty to the respondents to file a response to the said Miscellaneous Application.
(III) The Tribunal would try and decide the issues which are required to be decided by the Tribunal as per the order dated January 16, 2013 and order passed today as expeditiously as possibly preferably within six months from today.
IV) Payment which the respondents were to make the writ petitioner in terms of paragraph 11 of our decision dated January 16, 2013 would be made within 30 days from today.
(V) Issue pertaining to applicability of FR 54-B with respect to the period interregnum when the petitioner was suspended and reinstated without any penalty levied may be taken up by the writ petitioner byway of an independent Original Application before the Tribunal.
17. From the above, it is evident that the applicant has not made any prayer for consideration and payment of arrears of salary after joining at Channai on 30.11.2009 till the superannuation on 30.9.2011. We further note that the applicant has not filed any Miscellaneous Application as directed in the order dated 15.2.2013 of the Honble High Court, and his payer is confined to payment of salary related to the period of suspension, i.e., 14.5.2011 to the date of joining as made 12.10.2007. Moreover, in respect of his claim for the payment of salary for the period from 30.11.2009 till his retirement, the same has already been considered by us in para 12 of this order, wherein we have found that the applicant since joined at Chennai on 30.11.2009 and continued there till his superannuation, thus he would be entitled to get salary for the period which has been spent on duty. We accordingly order in this Application also.
18. We have also failed to detect any pleading relating to the period as directed by afore order dated 15.2.2013 of the Honble High Court, and hence, in the absence of pleadings, finding no merit in the OA, we dismiss the same without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/