Central Administrative Tribunal - Delhi
Hon Ble Shri G.George Paracken vs Union Of India Through on 20 February, 2015
Central Administrative Tribunal Principal Bench, New Delhi OA No.3726/2013 Reserved On:05.02.2015 Pronounced on:20.02.2015 Honble Shri G.George Paracken, Member (J) Shri Surinder Kumar Gupta (Retired as DDG) S/o Late Shri J.N. Gupta R/o 21/29, 4th Floor, West Patel Nagar, New Delhi. .Applicant By Advocate: Shri Malaya Chand. Versus 1. Union of India through Its Secretary, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Sansad Marg, New Delhi. 2. Pay and Accounts Officer, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Sansad Marg, New Delhi. Respondents By Advocate: Shri T.C. Gupta. ORDER
The grievance of the Applicant in this case is that the Respondents have not paid him the post retirement benefits like leave encashment, gratuity etc. on the ground stated in their impugned Annexure A-1 order dated 13.09.2013 issued to him in reply to his representation dated 22.07.2013 that the payment of leave encashment equivalent to Earned Leave can be finalized at the time of retirement on closing of his account and since at the time of retirement, he was under suspension, the leave account could not be closed as duty or otherwise and a view in this matter can be taken only on conclusion of criminal proceedings against him. Hence, it is not possible to close/finalise the leave account at an early stage.
2. The brief facts of the case are that while the Applicant was working as a Deputy Director General, Ministry of Statistics and Programme Implementation, an FIR No.DA1-2011-A-004 dated 01.06.2011 was filed against him. He was arrested on 02.06.2011 and was remanded to judicial custody from 03.06.2011 to 06.06.2011. In terms of sub-rule (2) of the CCS (CCA) Rules, 1964, since the period of judicial custody was for more than 48 hours, he deemed to have been suspended with effect from 02.06.2011, vide order No.11018/5/2011-ISS dated 13.06.2011. While under suspension, he retired from service on 31.05.2012. Thereafter, the amount terminal benefits accrued to him under the Heads of CGEGIS, GPF and provisional pension were released to him. However, his demand for payment of gratuity and commutation of pension was not acceded to, in view of the provisions contained in Rule 69 of the CCS(Pension) Rules, 1972 according to which, no gratuity shall be paid till conclusion of departmental/judicial proceedings and in terms of Rule 4 of the CCS (Commutation of Pension) Rules, 1981 according to which no Government servant against whom judicial or criminal proceedings have been instituted before the date of his retirement shall be eligible to commute a percentage of his provisional pension under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings.
3. As regards the payment of leave encashment is concerned, the Pay and Accounts Officer (PAO for short) has advised that as the Applicant was under suspension till superannuation and the period of his suspension was not decided as duty or not, hence the last pay drawn by him before superannuation could not be decided. But the matter was re-examined in the light of the clarification furnished by the DoP&T and vide Order No.A-19011/2/1993-Ad.I dated 27.02.2014 sanction for payment of Rs.8,68,375/- towards leave encashment equivalent to leave salary of 254 days of Earned Leave was issued.
4. According to the Applicant, the leave encashment amount (partial) was released to him only in February, 2014, i.e., after filing of this OA in October, 2013. Therefore, the Respondents are liable to pay interest on the entire delayed payment from Ist June 2011 to February, 2014 because of deliberate and arbitrary action of the PAO in not honouring the sanction order of the administration dated 21.06.2012. His 2 days salary is also yet to be released. He has also stated that the Respondents have erred in not including half pay leave for leave encashment purposes as provided in leave encashment rules, i.e. Rule 39(3) and (5) of CCS (Leave) Rules, 1972 which are reproduced as under:-
(3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any.
(5) A Government servant who retires or is retired from service in the manner mentioned in Clause ) of sub-rule (1), may be granted suo motu, by the authority competent to grant leave, cash equivalent of the leave salary in respect of earned leave at his credit subject to a maximum of 1[300 days (including the number of days for which encashment has been allowed along with Leave Travel Concession while in service)] and also in respect of all the half pay leave at his credit, provided this period does not exceed the period between the date on which he so retires or is retired from service and the date on which he would have retired in the normal course after attaining the age prescribed for retirement under the terms and conditions governing his service. The cash equivalent shall be equal to the leave salary as admissible for earned leave and/or equal to the leave salary as admissible for half pay leave plus dearness allowance admissible on the leave salary for the first 1[300 days (including the number of days for which encashment has been allowed along with Leave Travel Concession while in service)] at the rates in force on the date the Government servant so retires or is retired from service. The pension and pension equivalent of other retirement benefits and ad hoc relief/graded relief on pension shall be deducted from the leave salary paid for the period of half pay leave, if any, for which the cash equivalent is payable. The amount so calculated shall be paid in one lumpsum as a one-time settlement. No House Rent Allowance or Compensatory (City) Allowance shall be payable.
Provided that if leave salary for the half pay leave component falls short of pension and other pensionary benefits, cash equivalent of half pay leave shall not be granted.
In this regard he has also invited, the attention to Respondents earlier order dated 21.06.2012 by which cash equivalent to 254 days Earned Leave and 46 days half pay leave was considered for payment.
5. The learned counsel for the Applicant has also relied upon the judgment of the Apex Court in the case of Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board, Lucknow and Others 2014 (7) SCC 260 wherein it has been held that after the retirement of the Government servant, there is no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to him. In such cases, the employee would also get the balance of the emoluments payable to him. The relevant part of the said judgment reads as under:-
8. Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits.
9. The question has also been raised in the appeal with regard to arrears of salary and allowances payable to the appellant during the period of his dismissal and upto the date of reinstatement. Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him.
10. The appeals are, therefore, allowed and the judgment and order of the High Court are set aside and the respondents are directed to pay arrears of salary and allowances payable to the appellant and also to pay him his all the retiral benefits in accordance with the rules and regulations as if there had been no disciplinary proceeding or order passed therein. No costs.
He has also relied upon the judgment of the Apex Court in the case of Vijay L. Mehrotra Vs. State of U.P. and Others JT 2000 (5) SC 171 where in it has been held as under:-
2. The appellant retired from service on 31st August, 1997. From the response filed by the respondent, it is clear that most of the payments of the retiral benefits to her were made long after she retired on 31st August, 1997. The details of the payments so made are as under :
Sl. No. Particulars Amount paid Date
i) G.P.F. 90% Rs. 1,80,899.00 27-11-1997
ii) G.P.F. 10% Rs. 20,751.00 25-04-1998
iii) G.I.S. Rs. 13,379.00 27-02-1998
iv) Encashment of leave Rs. 41,358.00 27-09-1998
v) Arrears of pay Rs. 15,495.00 27-09-1998
vi) Gratuity Rs. 1,09,753.00 05-12-1998
vii) Commuted pension Rs. 20,484.00 05-12-1998
viii) Detained amount Rs. 45,000.00 05-11-1999
3. In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement.
4. In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay to the appellant within 12 weeks from today simple interest at the rate of 18 per cent with effect from the date of her retirement, i.e., 31st August, 1997 till the date of payments.
5. The appeal is allowed to the above extent
6. The Applicant has sought a direction to the Respondents to pay composite transfer grant, transportation charges for personal effects and car, air tickets for settling at Gondia, Maharashtra along with children after retirement. Further, he has also sought a direction to the Respondents to release the withheld salary for Ist and 2nd June, 2011, i.e., 2 days for the month of June, 2011 before he was placed under deemed suspension. He has also submitted that he is entitled for interest on the delayed payments and cost of litigation thrust upon him. The details of payments due to him on the date are as under:-
1. Leave encashment balance portion, including half pay leave, amount to Rs.1.57 lakhs.
2. Release of full salary for 01.06.2011 and 02.06.2011.
3. Permission to leave Delhi and settle in Maharashtra and release of composite transfer grant, transportation of personal effects and motor car, TA to travel to Gondia as per entitlement.
4. Gratuity amount.
5. Commutation of pension amount.
6. Interest on all these withheld amounts @18% being willful and arbitrary.
7. Cost of litigation.
7. I have heard the learned counsel for the Applicant Shri Malaya Chand and the learned counsel for the Respondents Shri T.C. Gupta. It is seen that the Respondents, during the pendency of this OA partly released the leave encashment for 254 days amounting to Rs.8,68,375/-. But they have not considered the fact that the Applicant had 92 days of Half Pay Leave to his credit and in terms of sub-rule (3) and (5) of Rule 39 of the CCS (Leave) Rules, 1972, quoted above, he is entitled for payment of the said period also. Again, the Respondents have not mentioned anything about the composite transfer grant and transportation charges for personal effects and car and air tickets for settling at Gondia, Maharashtra after his retirement. They have also not mentioned about the payment of his withheld salary for 2 days, i.e., 01.06.2011 and 02.06.2011.
8. The effect of retirement of an employee while on suspension has already been considered by the Honble Karnataka High Court in the case of R.S. Naik Vs. State of Karnataka and Others 1982 (1) KarLJ 156. The petitioner, therein, a member of Karnataka Judicial Service was placed under suspension from 4-5-1980 till further orders with a direction that he should be paid the subsistence allowance permissible as per rules. On a representation made by him, the Government, accepting the recommendation of the High Court and exercising the powers conferred on it under Rule 285 of the Karnataka Civil Service Rules permitted him to voluntarily retire from service with immediate effect, i.e., 22.10.1980. After his retirement, he made a representation to treat the period of his suspension from 4-6-1980 to 21-10-1980 as duty and to settle his pension and other terminal benefits. His contention was that, on his retirement from service, the earlier order of suspension lapsed or disappeared and that he should be deemed to be on duty during the aforesaid period of suspension. On the other hand, the Respondents contended that the petitioner cannot be deemed to be on duty under Rule 101 of the KCSR till the termination of the criminal proceedings against him for which reason only he was placed under suspension. However, the High Court held that there was no dispute that by the order of the Government on 22-10-1980 allowing the petitioner to retire from service voluntarily, the relationship of "master and servant" between the petitioner and the State ceased to exist and with the said severance of status, his rejoining duty even after the termination of the criminal proceedings, did not and could not arise. Therefore, the result of the criminal prosecution already launched or to be launched against him did not alter his status at all and a fortiori of the Court or the Government, revoking the earlier order of suspension also would not arise, whatever be the result of any such criminal prosecution. Even otherwise, the Government, by permitting the petitioner to retire from service, the earlier order of suspension has necessarily to be treated as having lapsed and was no longer available for being regulated by the disciplinary or the appellate authorities. In the said circumstances the period of suspension was only to be treated as on duty and could not be treated as under suspension. Accordingly, the High Court directed the Respondents to treat the period of suspension of the petitioner from 4-6-1980 to 21-10-1980 as duty and regulate his terminal and other benefits. The relevant part of the said judgment reads as under:-
9. Sri Mandappa, does not dispute that on the order made by Government on 22.10.1980, the relationship the relationship of "master and servant" between the petitioner and the State has ceased to exist. With the severance of status, the petitioners rejoining duty even after the termination of the criminal proceedings, does not and cannot arise. In this view, the result of the criminal prosecution already launched or to be launched against the petitioner does not alter his status at all and. A fortiori this Court or the Government, revoking the earlier order of suspension or regulating his period of suspension will not arise whatever be the result of criminal prosecution, if any launched or to be launched against the petitioner. Even otherwise, on Government permitting the petitioner to retire from service, the earlier order of suspension has necessarily to be treated as having lapsed and is no longer available for being regulated by the disciplinary or the appellate authorities. In these circumstances the period of suspension has only to be treated as on duty and cannot be treated as under suspension.
10. Rule 101 of the KCSR applies to a case where a criminal prosecution is pending against a civil servant and such servant is not permitted to retire from service. But that rule has not application to a case where a Government servant has been permitted to retire from service. But that rule has no application to a case where a Government servant has been permitted to retire while under suspension as in the present case. In this view also, the authorities are bound to treat the petitioner as on duty from 04.06.1980 to 21.10.1980 and regulate his terminal and other benefits on that basis only and not on the basis of the communication dated 29.01.1981 addressed by the Registrar.
11. In the light of my above discussion, I allow this writ petition, issue a writ in the nature of mandamus to the respondent to treat the period of suspension of the petitioner from 4-6-1980 to 21-10-1980 as duty and regulate his terminal and other benefits of the communication dated 29.01.1981 (Annexure-F) addressed by the Registrar of this Court to respondent No.4.
12. Rule issued is made absolute. But in the circumstances of the case, I direct the parties to bear their own costs.
9. The Honble High Court of Delhi in its judgment in the in the case of S.P. Jain Vs. Punjab National Bank and Another 1993 (25) DRJ 40, relied upon the aforesaid judgment. The petitioner therein was working as Branch Manager of the Punjab National Bank and he was charge sheeted on 23.03.1976 for certain charges of grave and serious nature and vide order dated 07.10.1987, he was placed under suspension with effect from 30.4.1976 to 30.04.1981, i.e., the date of superannuation. The Respondent has also decided to pay him only the subsistence allowance admissible to him under the Regulations and not the full salary and allowances. Another charge sheet dated 14th October, 1976 was also served upon him for the alleged irregularities committed by him during his incumbency in the Branch Office. An FIR under Sections 380, 420, 406 and 506 read with Section 120B of the Indian Penal Code was also filed on 01.06.1977. The disciplinary proceedings were also initiated against him. The petitioner in the year 1979, moved the High Court for stay of the departmental proceedings 'pending against him which was rejected vide order dated 14.03.1980. However, by L.P.A. No. 58/80, the High Court ordered to keep the departmental proceedings in abeyance till the disposal of the criminal case against him. Consequently, the departmental proceedings against him were stayed but they could not be completed before he attained the age of superannuation on, i.e., 30.04.1981. Thereafter, the petitioner, in the month of March, 1982, filed a suit in the court of the Subordinate Judge, Delhi, seeking a declaration to be made in his favor that he was continuing in service and that he will be entitled to monthly payment of subsistence allowance beyond 30.04.1981 till the criminal case/disciplinary action against him was finalised, alternatively, a declaration to the effect that he was entitled to duty pay for the period from 30.4.1976 to 30.4.1981 and be allowed all other retirement benefits towards Provident Fund, Gratuity etc. The Sub Judge did not grant the aforesaid reliefs to the petitioner. However, in appeal, the Additional District Judge, Delhi, on 08.07.1987 passed a decree to the effect that the petitioner would be entitled to full retirement benefits including the Provident Fund and Gratuity. Regarding pay and allowances for the period of suspension, the competent authority was directed to pass appropriate orders in terms of regulation 15.2 of Punjab National Bank Officer Employees (Discipline & Appeal) Regulation, 1977. Thereafter, the respondent-Bank paid him the retirement benefits like pension, provident fund, gratuity etc. However, the dispute regarding treating the period of suspension under Regulation 15.2 of the Regulations, 1977 remained to be resolved. Later on, in terms of the decree passed by Additional District Judge and after considering other relevant material, the Competent Authority passed an order rejecting the aforesaid claim of the petitioner to treat the suspension period as duty. The aforesaid order was challenged before the High Court on the grounds, inter alia, that on the date of superannuation, the relationship between the employer and employee has ceased to exist and suspension order automatically stands revoked. However, the respondent-Bank stated that in view of the order and decree of Additional District Judge, Delhi dated 08.07.1987, no further order was required to be passed. The High Court held that there was a good deal of force in the submission of the petitioner and held that once the petitioner was permitted to retire by the respondents without any objection, the relationship of master and servant between the respondent and petitioner ceased to exist. Therefore, the earlier order of suspension which was passed by the respondents has necessarily to be treated as having lapsed. The High Court has also held that according to the well settled principle, on attaining the age of superannuation, and the respondents did not have any objection, the relationship of master and servant between them has ceased to exist and, therefore, the order of suspension passed earlier has ceased to operate with the retiring of the petitioner from the service of the respondents. The High Court in its judgment has also relied upon the Apex Courts judgment in the case of H.L. Mehta V. Union of India and others 1974 S.L.R. 379 wherein the question arose was whether after the order of dismissal which was subsequently set aside, the order of suspension passed earlier also ceased to exist and did not revive thereafter by the subsequent setting aside the order of dismissal. In the said case, Apex Court held that when the order of dismissal was passed, the order of suspension ceased to exist. The High Court has also relied upon the judgment in the case of R.S.Naik (supra) in the aforesaid case. The point of controversy arose was whether on retirement, the suspension stood revoked on severance of status of master and servant irrespective of intended prosecution pending against the employee or not and the ultimate result thereof. The High Court held that, having once permitted the respondent to retire without any objection, the earlier order of suspension has necessarily to be treated as haying lapsed and it is no longer available for being revived by the disciplinary authority or the appellate authority. In the circumstances, the period of suspension has to be treated as duty only and cannot be treated as under suspension. The High Court has, therefore, held that the law laid down in the aforementioned authority equally apply with force to the instant case. Accordingly, the High Court allowed the Writ Petition with cost and directed the Respondent to treat the period of suspension of the petitioner from 30.04.1976 to 30.04.1981 as duty with all consequential benefits. The relevant part of the said judgment is as under:-
(9) There is a good deal of force in this submission. The principle is well settled that on attaining the age of superannuation, by the respondents without any objection the relationship of master and servant between them has ceased to exist and, Therefore, the order of suspension passed earlier has ceased to operate with the retiring of the petitioner from the service of the respondents. In H.L. Mehta V. Union of India and others, 1974 S.L.R. 379. the question arose whether after the order of dismissal, which was subsequently set aside, the order of suspension passed earlier also ceased to exist and did not revive thereafter by the subsequent setting aside the order of dismissal. In this context the Supreme Court held 'as under-
"THIS decision leaves no room for doubt as to the correct legal position and the conclusion must, Therefore, inevitably follow that when the order of dismissal was passed on 26th October, 1967, the order of suspension dated 11th April, 1963 ceased to exist and it did not revive thereafter by the subsequent setting aside of the order of dismissal by the first part of the impugned order."
(10) In State of Karnataka and Others Vs.R.S.Naik. 1983(3) S.L.R.49. the point in controversy arose whether on retirement the suspension stood revoked on severance of status of master and servant in respective of intended prosecution pending against the employee and ultimate result thereof. Division Bench of that Court has observed and held that having once permitted the respondent to retire without any objection, the earlier order of suspension has necessarily to be treated as haying lapsed and it is; no longer available for being regained by the disciplinary authority or the appellate authority. In the circumstances, the period of suspension has to be treated as duty only and cannot be treated as under suspension.
(11) The law laid down in the aforementioned authority equally apply with force to the present case. In the instant case the petitioner has been allowed to retire by the respondent on attaining the age of superannuation without any objection and, Therefore, earlier order of suspension automatically stand revoked. After the relationship "between master and servant has ceased to exist, the respondent has no jurisdiction to pass this order.
(12) Learned counsel for the petitioner further contended that before passing the order, Annexure-I, the respondent should have been afforded an opportunity to show cause against such an order, keeping in view. and in consonance with the provisions of natural justice, as the petitioner is adversely affected by such an order. In support of this submission, he relied upon M. Gopala Krishna Naidu V. State of Madhya Pradesh 1987(1) S.L.R, 800. He further contended that the petitioner has since been honorably acquitted in a criminal court, his case should have been considered by the Competent Authority under regulation 15(1) read with 15(3) of the Regulations, 1977 and not under Regulation 15(2) of the said Regulations. It is not necessary to decide these questions, as the petitioner succeeds on the first submission, as discussed above. As already held, suspension order automatically stands revoked on retirement as the relationship of roaster and servant has ceased to exist after the retirement.
(13) In the light of the above discussion, the impugned order Annexure-l is, set aside. The respondents are directed to treat the period of suspension of the petitioner from 30th April, 1976 to 30th April, 1981, as duty. The petitioner shall be entitled to consequential benefits. The petitioner shall also be entitled to costs from the respondents, quantified as Rs.1,000.00.
10. The law is settled on the point that an order of suspension of a Government servant does not put an end to his service. Suspension according to the Oxford Dictionary means the action of suspending or condition of being suspended; the action of debarring or state of being debarred, especially for a time, from a function or privilege, temporary deprivation of ones office or position. It is an executive action whereby a Government servant is kept out of duty temporarily pending final action being taken against him for acts of indiscipline, delinquency, misdemeanour etc. Under Rule 10(5)(a) an order of suspension made or deemed to have been made shall continue to remain in force until it is revoked by the competent authority.
11. The purpose of placing an employee under suspension has been stated by the Honble Supreme Court in U. P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan, 1993 Supp (3) SCC 483 and its relevant part reads as under:-
Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc.
12. The Apex Court has also considered the general principles of suspension vide its judgment in the case of R.P. Kapur v. Union of India (1964) 5 SCR 431 laid the law that:
"The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the Government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of government, the employer in the case or government must be held to be the authority which has the power to appoint a public servant. On general principle therefore the authority entitled to appoint a Public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him."
13. The Apex Court reiterated the above view in Balvantray Ratilal Patel v. State of Maharashtra (1968) 2 SCR 577 thus:
"The general principle is that an employer can suspend an employee pending an enquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. It is now well settled that the power to suspend, in the sense of a right to forbid as servant to work is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinary, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay.
It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld. In this connection it is important to notice the distinction between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the contract is subsisting. The suspension in the latter sense is always an implied term in every contract of service. When an officer is suspended in this sense it means that the Govt. merely issue a direction to the officer that so long as the contract is subsisting and till the time the officer is legally dismissed he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey."
14. In V.P. Gindroniya v. State of Madhya Pradesh (1970) 3 SCR 448, the Supreme Court held that the order of suspension has only the effect of temporarily suspending the relationship of mater and servant and during the period of suspension, full pay is not required to be given. The relevant part of the said order reads as under:
"The general principle is that if the master has a power to suspend his servant pending an enquiry into his misconduct, either in the contract of service or in the statute or the rules framed thereunder governing the service, an order of suspension passed by the master has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay any wages during the period of suspension. Such a power to suspend the contract of service cannot be implied and therefore, if in the absence of such a power in the contract, statute or rules, an order of suspension is passed by the master it only forbids the servant to work without affecting the relationship of master and servant, and the master will have to pay the servant's wages."
15. The Apex Court in the case of Union of India Versus Rajiv Kumar (2003) 6 SCC 516 considered those aspects avid held that an order in terms of Rule 10 (2) is not restricted in its point of duration or efficacy to the actual period of detention only. In continues to be operative unless modified or revoked under sub-rule (5) (c) as provided in sub-rule 5(a) of Rule 10 of the CCS (CCA) Rules, 1965. The relevant part of the said judgment reads as under:-
14. Rule 10(2) is a deemed provision and creates a legal fiction. A bare reading of the provision shows that an actual order is not required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does not speak of any period of its effectiveness. Rules 10(3) and 10(4) operate conceptually in different situations and need specific provisions separately on account of interpretation of an order of Court of law or an order passed by the Appellate or reviewing authority and the natural consequences inevitably flowing from such orders. Great emphasis is laid on the expressions "until further orders" in the said sub-rules to emphasise that such a prescription is missing in Sub-rule (2). Therefore, it is urged that the order is effective for the period of detention alone. The plea is clearly without any substance because of Sub-Rule 5(a) and 5(c) of Rule 10. The said provisions refer to an order of suspension made or deemed to have been made. Obviously, the only order which is even initially deemed to have been made under Rule 10 is one contemplated under Sub-Rule (2). The said provision under Rule 10(5)(a) makes it crystal clear that the order continues to remain in force until it is modified or revoked by an authority competent to do so while Rule 10(5)(c) empowers the competent authority to modify or revoke also. No exception is made relating to an order under Rules 10(2) and 10(5)(a). On the contrary, specifically it encompasses an order under Rule 10(2). If the order deemed to have been made under Rule 10(2) is to lose effectiveness automatically after the period of detention envisaged comes to an end, there would be no scope for the same being modified as contended by the respondents and there was no need to make such provisions as are engrafted in Rule 10(5)(a) and instead an equally deeming provision to bring an end to the duration of the deemed order would by itself suffice for the purpose.
15. Thus, it is clear that the order of suspension does not lose its efficacy and is not automatically terminated the moment the detention comes to an end and the person is set at large. It could be modified and revoked by another order as envisaged under Rule 10(5)(c) and until that order is made, the same continues by the operation of Rule 10(5)(a) and the employee has no right to be re-instated to service. This position was also highlighted in Balvantrai Ratilal Patel v. State of Maharashtra, AIR 1968 SC 800. Indication of expression "pending further order" in the order of suspension was the basis for aforesaid view.
16. But the questions to be considered are whether or not an employees suspension period can be extended till he retires from service and whether or not an employee remaining under suspension can be got retired from service. An order of suspension automatically gets revoked from the date from which the Government servant is dismissed, removed or compulsorily retired, as a result of departmental and/or Court proceedings or when the criminal proceedings against him terminate by acquittal/discharge and during the period of suspension he shall be paid only the allowance as provided in FR 53(1) which reads as under:-
F.R. 53. (1) A Government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments, namely:-
(i) in the case of a Commissioned Officer of the Indian Medical Department or a Warrant Officer in Civil employ who is liable to revert to military duty, the pay and allowance to which he would have been entitled had he been suspended while in military employment;
(ii) in the case of any other Government servant:-
(a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on such leave salary:
Provided that where the period of suspension exceeds three 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 three months as follows:-
(i) the amount of subsistence allowance may be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant;
(ii) the amount of subsistence allowance may be reduce by a suitable amount not exceeding 50% of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing, directly attributable to the Government servant;
(iii) the rate of Dearness Allowance will be based on the increased or, as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above.
(b) Any other compensatory allowances admissible from time to time on the basis of pay of which the Government servant was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances.
17. Under FR 56, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Under the said rule, there are no distinctions between the employees who are in active service and those who remained under suspension or under deemed suspension. However, when Government servant under suspension attains the age of superannuation before the termination of departmental or Court proceedings, he is provisionally pensioned off in terms of Rule 9(4) of the CCS (Pension) Rules, 1972 which reads as under:-
(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned. In that event, he will cease to draw subsistence allowance, but will be paid only provisional pension under Rule 69 of the said rules which reads as under:-
69 Provisional pension where departmental or judicial proceedings may be pending
1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension.
(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.
(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon :
Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.
(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.
18. Under Rule 23 of the said rules, the period during which the Government servant was placed under suspension is counted as qualifying service only on conclusion of such enquiry and he has been fully exonerated or his suspension is held to be wholly unjustified. The said rule reads as under:-
23. Counting of periods of suspension Time passed by a Government servant under suspension pending inquiry into conduct shall count as qualifying service where, on conclusion of such inquiry, he has been fully exonerated or the suspension is held to the wholly unjustified; in other cases, the period of suspension shall not count unless the authority competent to pass orders under the rule governing such cases expressly declares at the time that is shall count to such extent as the Competent Authority may declare.
19. Rule 49(2)(a) of the Pension Rules provides for determination of pension based on average emoluments which is as under:-
(2)(a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensum.
20. Rule 34 of the said Rules, defines Average Emoluments as under:-
Average emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last ten months of his service.
Note-2 below the said rules deals with the case of employees under suspension during the last ten months of his service for the purpose of determining the average emoluments. The said Note says that period of suspension does not count. The said Note reads as under:-
NOTE 2. - If, during the last ten months of his service, a Government servant had been absent from duty on extraordinary leave, or had been under suspension the period whereof does not count as service, the aforesaid period of leave or suspension shall be disregarded in the calculation of the average emoluments and equal period before the ten months shall be included.
Under FR 54-B(1), a suspended employee would have been reinstated but for his retirement, it is for the competent authority to decide whether or not the said period shall be treated as a period spent on duty. The said rule is reproduced as under:-
FR 54-B (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order
(a) regarding the pay and allowance to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and
(b) whether or not the said period shall be treated as period spent on duty.
21. From the above Rule position and the law laid down by the Apex Court, it is seen that an order of deemed suspension made under sub rule 10(2) continues until further order, modify it or review it. By reviewing the order of suspension while the employee is still in service before finalization of the departmental or criminal case pending against him, the only question that can arise in such situation will relate to payment during the period of such suspension. The general principle is that since the employee is not bound to render service during the period of suspension, the employer is not bound to pay wages during the said period. But by virtue of FR-53 (1) the government servant under suspension or deemed suspension is entitled for subsistence allowance at prescribed rules. However, whether an employee is under suspension/deemed suspension or in active service when he attains the age of superannuation, he has to retire from service and his suspension gets automatically revoked. In that event, instead of subsistence allowance drawn during the period of suspension, the employee gets provisional pension, provided he is eligible for pension. In such a situation, for determining his permanent pension, his period of suspension is excluded from the qualifying service for pension. The government employee continues to receive the provisional pension till the departmental/criminal case pending against him is concluded. If he is fully exonerated or his suspension is held to be wholly unjustified, the period of suspension shall count as qualifying service and his provisional pension will get revised and he will get full pension. In other cases, the period of suspension shall not count unless the authority competent to pass orders under the rule governing such cases expressly declares at the time that is shall count to such extent as the Competent Authority may declare.
22. In R.S. Naiks case (supra), the Honble Karnataka High Court held that since the relationship of master and servant between the Government and the employee ceased to exist on retirement, his status as an employee get altered. Thereafter, the employee rejoining duty after the termination of the criminal proceedings does not and cannot arise. Therefore, the result of the criminal prosecution already launched or to be launched against the employee does not alter his status at all. As a result, a fortiori this court or Government, revoking the earlier order of suspension or regulating his period of suspension will not arise whatever be the result of the criminal prosecution, if any launched or to be launched against the petitioner. Even otherwise, on Government permitting the petitioner to retire from service, the earlier order of suspension has necessarily to be treated as having lapsed and is no longer available for being regulated by the disciplinary or the appellate authorities. In these circumstances the period of suspension has only to be treated as on duty and cannot be treated as under suspension. The Honble High Court of Delhi also in its judgment in the case of S.P. Jain (supra) held that the principle is well settled that on attaining the age of superannuation, by the respondents without any objection the relationship of master and servant between them has ceased to exist and, therefore, the order of suspension passed earlier has ceased to operate with the retiring of the petitioner from the service of the respondents.
23. The aforesaid judgments equally apply in the present case as the Applicant herein while under suspension has been allowed to retire by the Respondents on attaining the age of superannuation without any objection and, therefore, the earlier period of suspension automatically got revoked and after the relationship of master and servant has ceased to exist, the Respondents have no jurisdiction to pass any further order. Consequently, the order passed by the Ministry of Statistics dated 13.09.2013 cannot be sustained. I, therefore, quash and set aside the impugned order dated 13.09.2013 and direct the Respondents to regulate payment of his pension and other terminal benefits including full gratuity, leave encashment. They shall also consider paying him the composite transfer grant, transportation charges for personal effects and car and air tickets for settling at Gondia, Maharashtra in accordance with the rules. If the Respondents have withheld his salary for Ist and 2nd June, 2011 without any valid reason, it shall also be paid to him. Further the Applicant is entitled to get interest at 9% on all the aforesaid benefits withheld by them from the respective dates they became due to the actual date of payment. They shall also supply the item-wise calculation sheets for all the payments to be made. Further, they shall pass appropriate orders in the matter under intimation to him. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. No costs.
(G. George Paracken) Member (J) Rakesh