Central Administrative Tribunal - Delhi
Babu Lal Yadav vs M/O Home Affairs on 3 November, 2022
1
OA No. 785/2021
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.785/2021
Order reserved on: 12.10.2022
Order pronounced on: 03.11.2022
Hon'ble Mr. Manish Garg, Member (J)
Babu Lal Yadav,
Constable in SSF,
Aged about 51 years,
S/o Sh. Nand Lal Yadav,
R/o Sh. Nand Lal Yadav,
R/o C/o Joginder Singh,
House No.829, Friday Market Gali,
VPO Pooth Khurd,
New Delhi-39.
...Applicant
(By Advocate: Mr. Anil Singal)
Versus
1. Union of India
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. Chief Security Officer (CSO),
Secretariat Security Organisation,
Ministry of Home Affairs,
NDSS-II Building, Jai Singh Road,
New Delhi.
... Respondents
(By Advocate : Mr. Ranjan Tyagi)
2
OA No. 785/2021
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"a) To call for the records for the case and quash and set aside the impugned Para 7(ii) and
(iii) of order dt.26.6.2019 and Order dt.
25.10.2019.
b) To direct the respondents to pay to the applicant full salary for the period from 14.3.2013 to 25.6.2019 as per Judgment dt. 13.3.2013 upheld vide Judgment dt.8.1.2019 with 12% pa interest w.e.f. 26.6.2019 Or in alternate To direct the respondents to pay to the applicant subsistence allowance for the period from 16.12.2010 to 25.6.2019 with 12% pa interest w.e.f. 26.6.2016.
c) To award costs in favour of the applicant and pass any order or orders which this Hon'ble Tribunal may deem just an equitable in the facts and circumstances of the case."
2. Brief facts:
2.1 The applicant was working as Constable in SSF when he was illegally compulsory retired vide order dated 16.12.2010. The punishment was enhanced and applicant was dismissed vide Appellate Order dated 03.11.2011. The applicant 3 OA No. 785/2021 filed OA No.686/2012 challenging order dated 16.12.2010 and 03.11.2011, which was allowed vide order dated 13.03.2013 and both the orders of punishment were quashed with the direction to reinstate the applicant forthwith with all consequential benefits without backwages.
Further, the applicant was made entitled to full month salary also if order not complied with.
The respondents challenged the aforesaid Tribunal's order before Hon'ble High Court of Delhi. The Hon'ble High Court vide judgment dated 08.01.2019 upheld the Tribunal's order dated 13.03.2013 and directed the respondents to reopen the enquiry proceedings from the stage of examination of departmental witnesses, which reads as under:
"6. A perusal of the impugned order shows that while quashing the disciplinary proceedings, the Tribunal has not made any observation-one way or other, with regard fresh holding of the enquiry in accordance with law. Mere irregularity in the conduct of the enquiry proceedings does not wash away the serious charge against the respondent. Thus, while upholding the impugned order passed by the Tribunal, we permit the petitioner to reopen the enquiry proceedings from the stage of 4 OA No. 785/2021 examination of the departmental witness(es). Keeping in view the fact that with the passage of time, the availability of the witnesses would have to be reassessed, we permit the petitioner to submit its fresh list of witnesses and documents before the Enquiry Officer within four weeks with advance copy to the respondent. The proceedings shall be conducted by the Enquiry Officer- who may be appointed afresh, from that stage onwards. Considering the facts that the matter has been hanging fire since 2005, the Enquiry should be completed within one year from today and no unnecessary adjournments shall be sought, or be granted to either of the parties.
7. The petition stands disposed of in the above terms."
3. In compliance of the judgment of Hon'ble High Court, respondent No.2, vide impugned order dated 26.06.2019, reinstated the applicant, which reads as under:
"7. AND WHEREAS, in pursuance with the directions of the Hon'ble High Court, Delhi, the Competent Authority makes the following orders:
i. Shri Babu Lal Yadav, Constable(removed) is reinstated in service with effect from the date of penalty order i.e. 16/12/2010, to enable the Competent Authority to reopen the Inquiry proceedings from the stage of the examination of the Departmental Witnesses. Such reinstatement is without prejudice to the departmental proceedings being continued against him for the misconduct, for which he was originally removed from service as a measure of penalty under CCS(CCA) Rules, 1965; and the said proceedings will be continued from the stage of the examination of the Departmental Witnesses as per order of the Hon'ble Delhi High Court and 5 OA No. 785/2021 ii. He shall be deemed to have been placed under suspension from the date of order of penalty i.e. with effect from 16/12/2010 until further orders, in terms of rules 10f4) of CCS (CCA) Rules.
iii. Shri Babu Lal Yadav shall not be paid any back wages including subsistence allowance till the issuance of order of his reinstatement i.e. up to 25/06/2019 in light of the observation of Hon'ble CAT, Principal Bench vide order dated 13/03/2013 and decision on amount of any dues arising out of his reinstatement in service is dependent on the enquiry ordered vide letter No. C-18014/1/2012(Part.) dated 26/06/2019. However, Shri Babu Lal Yadav shall be paid subsistence allowance @ 50% of his pay last drawn for the first 3 months from the date of issue of this order i.e. w.e.f. 26/06/2019; and further @ 75% of his pay last drawn for the remaining period of deemed suspension subject to fulfillment of the laid down condition of furnishing a Non- employment certificate under FR 53."
4. Applicant was placed under deemed suspension w.e.f. 16.12.2010. He was denied full back wages for the period from 14.03.2013 to 25.06.2019. He also filed representation dated 22.10.2019 against the order dated 26.06.2019 and demanded full salary from 14.03.2013 to 25.06.2019, which was rejected by the respondents vide order dated 25.10.2019, which reads as under:
"With reference to his application dt. 22.10.2019, Shri Babu Lal Yadav, Constable, is hereby 6 OA No. 785/2021 informed that Hon'ble High Court, Delhi, in their judgment dated 09.01.2019 has directed the petitioner to reopen the Inquiry proceedings from the stage of the examination of the Departmental Witnesses. Accordingly, the Competent Authority vide order No. C-18014/1/2012(part) dated
26.06.2019 reinstated Shri Babu Lal Yadav and thereafter placed him under deemed suspension in terms of rules 10(4) of CCS(CCA) Rules to enable the Disciplinary Authority to reopen the inquiry proceedings from the stage of the examination of departmental witnesses.
2. Further, it has also been ordered that Shri Babu Lal Yadav shall not be paid any back wages including subsistence allowance till the issuance of order of his reinstatement i.e. upto 25.06.2019 in light of the observation of Hon'ble CAT- Principal Bench vide order dated 13.03.2013 and decision on amount of any dues arising out of his reinstatement in service is dependent on the enquiry ordered vice letter No. C-18014/1/2012 (Part) dated 26.06.2019."
4. Per contra, the learned counsel for the respondents contended that when the applicant was on deputation to Embassy of Tokyo as Security Guard, a complaint was received against him. He was detained by the Japanese Police in January 2006 in connection with that complaint. Thereafter, Ministry of External Affairs vide letter dated 01.06.2007 had requested Ministry of Home Affairs to initiate stringent disciplinary action against the applicant and informed them the 7 OA No. 785/2021 punishment awarded to him. Thereafter, disciplinary inquiry was initiated against the applicant. During the inquiry, none of the witnesses listed in the charge sheet could be presented before the Inquiry Officer (IO) because at that time, all the witnesses were staff of the Indian embassy in Tokyo, Japan. IO relied upon cross examination of the applicant and concluded that the charges leveled against him were not proved. However, Disciplinary Authority (DA) disagreed with the findings of the IO and imposed a penalty of compulsory retirement from service with 2/3rd pension and gratuity benefits against him vide order dated 16.12.2010. Applicant made an appeal against the order of DA to the Appellate Authority (AA) for revocation of the penalty of compulsory retirement. The AA, after considering the facts and the appeal made by the applicant, enhanced the penalty from compulsory retirement to dismissal from service vide order dated 03.11.2011. Thereafter, applicant approached various courts for 8 OA No. 785/2021 redressal of his grievance. It has been averred that:
"As per the order of Hon'ble High Court, inquiry proceeding in the case from the stage of examination of departmental witnesses was initiated since June, 2019.
The three witnesses in the matter of Disciplinary proceedings against Sh. Babu Lal Yadav are:
(i) Shri Subit Kumar Mandal, Ex. Deputy Chief of Mission,Embassy of India, Japan, now retired and is staying at Kolkata.
(ii) Shri G.V. Srinivas, Joint Secretary (LAC), MEA (the then First Secretary, Embassy of India, Japan) is presently Ambassador of Senegal.
(iii) Mr. Marcos Ramos Dimayuga, is Junior Staff Driver, Embassy of India, Tokyo, Japan.
Recording of the evidence of Mr. Marcos Ramos Dimayuga, Junior Staff Driver, Embassy of India, Tokyo, Japan, through video conferencing was arranged by Bureau of Security, Ministry of External Affairs, on 01.07.2020 and 02.02.2021. Charged officer however did not participate on both the occasion. (Annex. R-12) Recording of evidence of another witness, Sh. G.V. Srinivas was held on 04.02.2021 through video conferencing arranged by Ministry of External Affairs. Charged officer did not participate in this proceeding too (Annex. R-13).
Sh. Subit Kumar Mandal who retired on superannuation from Ministry of External Affairs and is presently in Kolkata, has on numerous occasion been requested to participate in the enquiry proceeding, at place and time as per his convenience, however, Sh. Subit Kumar Mandal has expressed his inability to attend the proceedings, and therefore recording of evidence of Shri Subit Kumar Mandal could not be held. The charged officer has not been co-operating in the enquiry proceedings on the pretext of one or the other. The charged officer is even not ready for 9 OA No. 785/2021 recording of evidence of witnesses through video conferencing and did not participate in the enquiry proceeding (through video conferencing) held on 01.07.2020, 02.02.2021 & 04.02.2021. On the request of Inquiry Officer, Respondent has submitted before Hon'ble Delhi High Court to extend the period of lnquiry for a further period of 08 months and to direct Sh. Babu Lal Yadav to cooperate in the inquiry. The same has been allowed by Hon'ble High Court vide their Order dated 08.02.2021 in C.M. No. 3666/2021 and the period has been extended by eight months. Hon'ble Court has also directed Shri Babu Lal Yadav to co-operate in the inquiry proceedings (Annex R-16).
Disciplinary enquiry proceeding against Shri Babu Lal Yadav, on the direction of Hon'ble High Court, is pending before the Inquiry Officer. The next date of hearing in the disciplinary proceeding case is scheduled on 22.09.2021. The final report of the Inquiry Officer is still pending."
5. ANALYSIS:
5.1 Rule 10 (4) of CCS (CCA) Rules has been invoked in the present case by the respondents.
"10. 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 President, by general or special order, may place a Government servant under suspension-
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant 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 a consideration of the circumstances of the case, decides to hold a further inquiry against him 10 OA No. 785/2021 on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders :
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
"(5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so."
(b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. 11 OA No. 785/2021
Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.
(7) An order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days :
Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later."
5.2 In spite of the instructions referred to above, instances have come to notice in which Government servants continued to be under suspension for unduly long periods. Such unduly long suspension while putting the employee concerned to undue hardship, involves payment of subsistence allowance without the employee performing any useful service to the Government.
It is, therefore, impressed on all the authorities concerned that they should scrupulously observe the time limits laid down in the Office Memoranda 12 OA No. 785/2021 referred to in the preceding paragraph and review the cases of suspension to see whether continued suspension in all cases is really necessary. The authorities superior to the disciplinary authorities should also exercise a strict check on cases in which delay has occurred and give appropriate directions to the disciplinary authorities keeping in view the provisions contained in the aforesaid Office Memoranda. [Department of Personnel & AR OM No. 11012/7/78-Ests.(A) dated the 14th September, 1978].
5.3 The attention of the Ministry of Finance etc. is invited to this Department's OM No. 11012/7/78- Estt. (A) dated 14th September, 1978, in which the existing instructions relating to suspension of Government employees have been consolidated. In spite of these instructions it has been brought to the notice of this Department that Government servants are sometimes kept under suspension for unduly long periods. It is, therefore, once again reiterated that the provisions of the aforesaid 13 OA No. 785/2021 instructions in the matter of suspension of Government employees and the action to be taken thereafter should be followed strictly. Ministry of Finance etc. may, therefore, take appropriate action to bring the contents of the OM of 14.09.1978, to the notice of all the authorities concerned under their control, directing them to follow those instructions strictly.
5.6 So far as payment of subsistence allowance is concerned, Ministry of Finance etc. are also requested to bring the contents of FR 53 to the specific notice of all authorities under their control, with particular reference to the provisions in the aforesaid rule regarding the need for review of the rate of subsistence allowance after a continued suspension of more than 90 days, for strict compliance. [Deptt. of Personnel & A.R. O.M. No. 42014/7/83-Ests.(A) dated the 18th February, 1984].
14OA No. 785/2021 5.7 Timely payment of subsistence allowance:
In the case of Ghanshyam Das Srivastava Vs. State of Madhya Pradesh (AIR 1973 SC 1183), the Supreme Court had observed that where a Government servant under suspension pleaded his inability to attend the inquiry on account of financial stringency caused by the non-payment of subsistence allowance to him the proceedings conducted against him ex parte would be in violation of the provisions of Article 311 (2) of the Constitution as the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings.
6. In the light of the judgment mentioned above, it may be impressed on all authorities concerned that they should make timely payment of subsistence allowance to Government servants who are placed under suspension so that they may not be put to financial difficulties. It may be noted that, by its very nature, subsistence allowance is meant for the subsistence of a suspended 15 OA No. 785/2021 Government servant and his family during the period he is not allowed to perform any duty and thereby earn a salary. Keeping this in view, all concerned authorities should take prompt steps to ensure that after a Government servant is placed under suspension, he received subsistence allowance without delay.
7. The judgment of the Supreme Court referred to in para 1 above, indicates that in that case, the disciplinary authority proceeded with the enquiry ex-parte notwithstanding the fact that the Government servant concerned had specifically pleaded his inability to attend the enquiry on account of financial difficulties caused by non- payment of subsistence allowance. The Court had held that holding the enquiry ex-parte under such circumstances, would be violative of Article 311 (2) of the Constitution on account of denial of reasonable opportunity of defence. This point may also be kept in view by all authorities concerned, before invoking the provisions of rule 14 (20) of the 16 OA No. 785/2021 CCS (CCA) Rules, 1965. [Cabinet sect.(Department of Personnel & Administrative Reforms) OM No. 11012/10/76-Estt.(A) dated 6th October, 1976].
8. As mentioned in the OM dated 6th October, 1976 referred to above, the Supreme Court have held that if a Government servant under suspension pleads his inability to attend the disciplinary proceedings on account of non- payment of subsistence allowance, the enquiry conducted against him, ex-parte, could be construed as denial of reasonable opportunity of defending himself. It may, therefore, once again be impressed upon all authorities concerned that after a Government servant is placed under suspension, prompt steps should be taken to ensure that immediate action is taken under FR 53, for payment of subsistence allowance and the Government servant concerned receives payment of subsistence allowance without delay and regularly subject to the fulfillment of the condition laid down in FR 53. In cases where recourse to ex-parte 17 OA No. 785/2021 proceedings becomes necessary, if should be checked up and confirmed that the Government servant's inability to attend the enquiry is not because of non-payment of subsistence allowance. [Deptt. of Personnel & Training, OM No. 11012/17/85-Estt.(A) dated the 28th October, 1985.
9. Review of suspension - Amendment to the provisions of rule 10 -
9.1 The provisions of rule 10 of the CCS (CCA) Rules, 1965 regarding deemed suspension have since been reviewed by this Department. 9.2 The provisions in Rule 10 of CCS (CCA) Rules have been modified and amendment to the same has been notified in Notification No. GSR 105 dated 6.06.2007 as published in the Gazette of India dated 16.06.2007.
9.3 As per the original provisions of rule 10 of the CCS (CCA) Rules, 1965, the provision for review 18 OA No. 785/2021 within ninety days was applicable to all types of suspensions. However, in cases of continued detention, the review becomes a mere formality with no consequences as a Government servant in such a situation has to continue to be under deemed suspension. It has, therefore, been decided that a review of suspension shall not be necessary in such cases. Accordingly, a proviso has now been added to sub-rule (7) of the said Rule 10 as follows:
"provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule(2), if the Government servant continues to be under detention at the time of completion of ninety days of suspension and the ninety days period for review in such cases will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later."
9.4 In deemed suspension under sub-rule (2), the date of order of suspension may be much later than the deemed date of suspension. With a view to making these provisions explicit, sub-rule (6) of the aforesaid Rule 10 has now been amended to 19 OA No. 785/2021 substitute the words "ninety days from the date of order of suspension" occurring therein with "ninety days from the effective date of suspension". Consequent upon this amendment, it would henceforth be necessary to specifically indicate in the orders of suspension the effective date of suspension.
9.5 Sub-rule (7) of the aforesaid rule 10 stipulates says that "Notwithstanding anything contained in sub-rule (5)(a), an order of suspension made or deemed to have been made under sub-rule (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days."
Sub-rule (5)(a) of the aforesaid Rule 10 has, therefore, now been amended to read as follows :-
"subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so."20 OA No. 785/2021
Consequently, the words "Notwithstanding anything contained in sub-rule (5)(a)" stated in sub-rule(7) of Rule 10 have become redundant and have, therefore, been deleted.
9.6 In so far as persons serving in the Indian Audit and Accounts Department are concerned, these amendments have been made in consultation with the Comptroller and Auditor General of India. [DOPT OM No. 11012/4/2007-Estt. (A), dated 12th July, 2007].
9.7 In the case of Maimoona Khatun And Anr. vs. State of U.P. And Anr., 1980 AIR 1773, it is held as under:-
"In the case of State of Bombay v. Dr. Sarjoo Prasad Gumasta the view taken by the Madras High Court was fully endorsed and it was pointed out that under Fundamental Rules 53 and 52 the Government servant's salary ceased upon his suspension and he becomes entitled only to subsistence allowance. It was held that so long as the order of suspension or dismissal stands, the Government servant cannot obviously claim his salary because no salary as such accrues due. The court observed thus :-
"That date would be the starting point of limitation for a suit by the Government servant and the date when the order is quashed would be the terminus a quo for a suit by the 21 OA No. 785/2021 Government servant of claim for the arrears of salary and allowances for the period from the date of his suspension and/or dismissal."
A Division Bench of Hon'ble Delhi High Court has also taken a similar view and while dwelling on the starting point of limitation under Article 102, in the case of Union of India v. Gian Singh, observed as under:-
"Article 102 of the said Limitation Act undoubtedly provides that a suit for wages has to be filed within three years of the time when they accrue due. The question, therefore, is whether the respondent did have a cause of action for claiming his full pay and allowances for the period 19-11-1953 to 18-7- 1956 in the present suit which he filed on September 10, 1959...... It was only on the date of the receipt of the notice of termination of services, that is, 26-1-1958 that the order of suspension stood revoked, and it would be only on and after 26-1-1958 that the respondent could be entitled to claim full pay and allowances for the period of suspension. Full wages for the period of suspension would, therefore, accrue to him by reason of Fundamental Rule 53 only when the order of suspension is revoked or could be deemed to have been revoked. Prior to that the wages would not accrue and he would have no cause of action."
So far as this Tribunal is concerned, the matter stands concluded by a decision of this Court in case of The State of Madhya Pradesh vs. The State of Maharashtra & Ors., 1977 SCR (2) 555 where a Bench of three-Judge considered this specific question and distinguished the earlier decisions of this Tribunal in Jai Chand Sawhney v. Union of India, (1970) 3 SCR 222 and Sakal Deep Sahai Srivastava v. Union of India, (1974) 2 SCR 485. While expounding the law regarding as to when the right to sue actually accrues, this Court observed as follows:-
"Three features are to be borne in mind in appreciating the plaintiff's case from the point 22 OA No. 785/2021 of view of limitation. First the plaintiff became entitled to salary for the period September 16, 1943 upto the date of reinstatement on December 12, 1953, only when pursuant to the decree dated August 30, 1953 there was actual reinstatement of the plaintiff on December 12, 1953......
On these facts two consequences arise in the present appeal. First, since the plaintiff was under suspension from September 16, 1943 till December 12, 1953 when he was reinstated and again suspended from January 19, 1954 till February 23, 1956 when he was dismissed, his suit on October 6, 1956 is within a period of three years from the date of his reinstatement on December 12, 1953. Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53. Further decision to that effect was taken by the Madhya Pradesh Government on January 28, 1956 under Fundamental Rule
54. Therefore, the plaintiffs cause of action for salary for the period of suspension did not accrue until he was reinstated on December 12, 1953. The plaintiff's salary accrued only when he was reinstated as a result of the decree setting aside the orders of suspension and not of dismissal.....
The rulings of this Court in Jai Chand Sawhney's case and Sakal Deep's case do not apply to the present appeal because there was no aspect of any suspension order remaining operative until the fact of reinstatement pursuant to the decree.......Therefore, there would be no question of salary accruing or accruing due so long as order of suspension and dismissal stands. The High Court was correct in the conclusion that the plaintiff's claim for salary accrued due only on the order of dismissal dated February 23, 1956 being set aside."
It is, therefore, manifest from a perusal of the observations made by this Court in the aforesaid case that the plaintiff's salary accrued only when the employee was reinstated as a result of the 23 OA No. 785/2021 decree setting aside the order of suspension or dismissal.
In that case, the employee was suspended as far back as 16th September 1943 and after an enquiry, the employee was removed from service on 7th November 1945. The employee filed a suit on the 6th of January 1949 and claimed his salary from 16th September 1943, the date when he was suspended, up to the date of his reinstatement on December 12, 1953 when the decree was passed. Indeed, if the view taken by the Hon'ble High Court in the instant case was correct, the suit of the employee would have been hopelessly barred by limitation and he could not have got a decree for more than three years from 1949, the date when he filed the suit. This Tribunal, however, held that as the starting point of limitation was not the date of the suit but the date when the removal of the employee was held to be void and he was reinstated, the suit was not barred by limitation. We might also mention that this Tribunal also held that under Fundamental Rule 52 of the U. P. Rules, the pay and allowances of a Government servant ceased from the date of dismissal and therefore there was no question of his claiming any arrears so long as his dismissal or removal stood. The facts of the present case seem to us to be directly covered by the decision rendered by this Tribunal in the aforesaid case. Thus, this Tribunal has fully endorsed the view taken by the Hon'ble Madras and the Bombay High Court, referred to above.
It seems to us that if we take the view that the right to sue for the arrears of salary accrues from the date when the salary would have been payable but for the order of dismissal and not from the date when the order of dismissal is set aside by the civil court, it will cause gross and substantial injustice to the employee concerned who having been found by a court of law to have been wrongly dismissed and who in the eye of law would have been deemed to be in service, would still be deprived for no fault of his, of the arrears of his salary beyond three years of the suit which, in spite of his best efforts he could not have claimed, until the order of dismissal was declared to be 24 OA No. 785/2021 void. Such a course would in fact place the Government employees in a strange predicament and give an undeserving benefit to the employers who by wrongfully dismissing the employees would be left only with the responsibility of paying them for a period of three years prior to the suit and swallow the entire arrears beyond this period without any legal or moral justification. This aspect does not appear to have been noticed by the courts which have taken the view that the starting point of limitation would be three years from the date of the suit and was for the first time noticed by this Court in State of Madhya Pradesh v. State of Maharashtra & ors. (supra) which seems to us to have righted a wrong which was long overdue.
For these reasons, therefore, we are clearly of the opinion that in cases where an employee is dismissed or removed from service and is reinstated either by the appointing authority or by virtue of the order of dismissal or removal being set aside by a civil court, the starting point of limitation would be not the date of the order of dismissal or removal but the date when the right actually accrues, that is to say, the date of the reinstatement, by the appointing authority where no suit is filed or the date of the decree where a suit is filed and decreed. In this view of the matter, the High Court was in error in modifying the decree of the trial court and the lower Appellate Court and limiting the claim of the appellant to a period of only three years prior to the suit. In view of the findings given by the courts on facts, which have not been reversed by the High Court, it is manifest that the appellants are entitled to the entire decreed amount claimed by them and for which a decree was granted by the trial court and the lower appellate court. We, therefore, allow this appeal, set aside the judgment and decree of the High Court and restore the judgment and decree of the trial court. The appellant will be entitled to costs throughout and interest at the rate of 6 per cent per annum on the decreed amount from the date of the termination of his service to the date of payment." 25 OA No. 785/2021
10. Applying the ratio of the above noted case to the facts of the present case, Maimoona Khatun And Anr vs. State Of U.P. And Anr. (supra), it can be observed on harmonious construction of FR 53 read with the principle contained in Rule 54 the position would change that until a Government servant is reinstated, he cannot claim any arrears of salary or pay. Moreover, in the instant case, applying Rule 54 applicant was reinstated by virtue of the impugned order (Annexure A-1). It is, therefore, manifest that the employee could not have claimed any arrears of his salary until he was reinstated on the strength of observations in the Tribunal's Order dated 13.03.2013 which merged by subsequent order passed by the Hon'ble High Court's judgment dated 08.01.2019.
11. Thus, it is clear that the right to sue for arrears of salary accrued only after the employee was reinstated vide its impugned order (Annexure A-1). However, the matter does not end up here. The impugned order(s) Annexure A1 and A2) herein 26 OA No. 785/2021 speaks of the deemed order of suspension w.e.f 16.12.2010 till date. The same has not been reviewed till date. It is also noted that the impugned order(s) (Annexure A1 and A2) are silent on the issue of subsistence allowance or arrears of payment of salary payable with effect from 16.12.2010 till the order of compulsorily retirement till order dated 13.03.2013 i.e. date of the order passed by the Tribunal. The applicant was directed to be reinstated within period of two months from the date of passing of the order dated 13.03.2013. The applicant was also entitled to full salary on failure to get the reinstatement after expiry of two months. It is not disputed that there was no stay operating against the said order dated 13.3.2013. Neither the respondent reinstated the applicant within the time frame as stated herein above.
12. It is not disputed that it is a matter of fact that had the respondents passed appropriate orders regarding reinstatement of the applicant immediately after expiry of the period of two 27 OA No. 785/2021 months from the date of passing of order dated 13.03.2013, the situation would have been entirely different. The applicant would have been reinstated with benefits subject to the outcome of the WP No.(C) No.2070/2014. The only order, which came to be passed by the Hon'ble High Court, dated 31.03.2014 inter alia observed as under:-
"ORDER 31.03.2014 CMs 4331-4332/2014 Exemption is allowed subject to all just exceptions.
The applications are disposed of.
W.P.(C).2070/2014 and CM 4333/2014 (delay) Issue notice returnable on 19th May, 2014.
Having regard to the nature of the matter the Court would have proceeded and passed appropriate orders in the application seeking interim relief. However, at the same time the Court is not oblivious to the fact that the order impugned in this case is of 13.3.2013. In these circumstances, taking note of the pendency of the proceedings, the Court is of the opinion that if an application for adjournment or deferment of contempt proceedings before CAT is made, the same shall be reasonably considered and orders made in that regard.28 OA No. 785/2021
CM 4330/2014 (stay) It is open to the petitioner to request the CAT to defer the hearings in the contempt proceedings sought to be initiated before it.
The CAT shall consider the request, if made, reasonably in the circumstances of the case.
Order dasti under the signature of the Court Master.
S. RAVINDRA BHAT, J R.V.EASWAR, J"
13. Furthermore, the respondent filed a CM No.3655/2021 and CM No.3666/2021, the following order came to be passed by the Hon'ble High Court on 08.02.2021, which is reproduced herein below:-
"C.M.No.3655/2021
Present application has been filed seeking a direction to the respondent to cooperate in the inquiry and to conduct cross-examination of witnesses through video conferencing and/or skype.
Issue notice.
Mr. Anil Singhal, Advocate accepts notice.
Since in the present case all the three witnesses are situated outside Delhi, it would be just, proper and expedient to record their evidence by way of video conferencing. Further, even this Court, on the original side, records evidence by way of video conferencing. Consequently, the present application is allowed.29 OA No. 785/2021 C.M. No.3666/2021
Present application has been filed seeking extension of time by eight months to complete the disciplinary proceedings in terms of order dated 08th January, 2019.
Keeping in view the averments made in the application and the prevailing COVID-19 pandemic, the same is allowed and time is extended by eight months to complete the disciplinary proceedings in terms of the order dated 09 January, 2019.
Accordingly, the application stands disposed of.
The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail."
14. Even no departmental enquiry has been concluded till date despite seeking extension from the Hon'ble High Court from time to time to take the case to its logical conclusion. The respondents cannot be allowed to take advantage of its own wrongs by not following the Rule Position and also for taking steps pursuant to the order(s) passed by the Hon'ble High Court from time to time.
15. Conclusion:
In view of the fact that period from 16.12.2010 till date, has been treated as period of 30 OA No. 785/2021 deemed suspension, the applicant, though not entitled to full salary or wages, is entitled to Subsistence Allowance inasmuch as till date no review order has been passed regarding his suspension in light of above factual situation and also under FR 10 (4) and clarifications issued as stated herein above from time to time. Hence, the impugned order dated 26.06.2019 Annexure A-1
(iii) in so far as non-grant of subsistence allowance upto 25.06.2019 is set aside. The respondent/ Competent Authority shall pass appropriate order(s) for grant of subsistence allowance for the period w.e.f. 14.03.2013 till 25.06.2019 as per FR Rule 10(4) read with FR 53 and FR 54 within two months from date of receipt of the certified copy of this order, failing which the respondent shall be liable to pay interest @ 6% from date of expiry of the period till the date of actual payment. It is also noticed that applicant had not participated in enquiry proceedings on 01.07.2020, 02.02.2021, 04.02.2021 and 22.09.2021 till date, therefore, it 31 OA No. 785/2021 would be expedient and in the interest of justice that any amount paid as Subsistence Allowance w.e.f 01.07.2020 till the date he joins the departmental proceedings, shall not be paid to him. It is also made clear that any amount paid to the applicant w.e.f 01.07.2020 towards the Subsistence Allowance till date shall be adjusted against the arrears of subsistence allowance for the period w.e.f. 14.03.2013 till 25.06.2019 with interest @ 6% per annum as ordered herein above. Further, it is directed that the impugned Order Annexure -2 (Suspension Order), if not reviewed, be reviewed after expiry of ninety days period from today.
16. The OA is allowed to the aforesaid extent. No order as to the costs.
(Manish Garg) Member (J) /sd/