The Senior Superintendent Of Post ... vs V.S.Satheesachandrakumar on 26 June, 2024

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Kerala High Court

The Senior Superintendent Of Post ... vs V.S.Satheesachandrakumar on 26 June, 2024

The present original petition is filed by the respondent before the Central Administrative Tribunal (the Tribunal, for short). The applicant had approached the Tribunal seeking for a direction to the respondents to grant enhanced subsistence allowance at the rate of 75% in terms of Fundamental Rules 53, from the eligible date i.e., 17.9.2007 to 24.12.2011. Consequential direction was also sought for directing the respondents to sanction the HRA and CCA from August 2010 onwards.

2. The facts necessary for disposal of the original petition are as follows:

O.P.(CAT) No.15 of 2018 3

The applicant while working as Postal Assistant (Treasurer) in the Central Post Office, Thiruvananthapuram was suspended from service on 19.6.2007. As per Rule 53 of the Fundamental Rules, the applicant was entitled to have the suspension reviewed after ninety (90) days causing an enhancement of subsistence allowance by 50% of the amount initially paid and thereafter, at the end of one hundred and eighty (180) days the same ought to have been increased by 75%. The applicant submitted a series of representations starting from 15.11.2007, 21.2.2008, 8.3.2010, 16.9.2010 and 24.12.2011 seeking the benefits for enhanced subsistence allowance. In the meanwhile, the applicant also filed a representation on 21.11.2011 stating that the HRA and CCA were also denied. Thereafter, the representations were taken up for consideration and by order dated 10.1.2014 the request was denied. On 3.2.2014 yet another order was issued rejecting the representation filed by the applicant. In view of these orders of O.P.(CAT) No.15 of 2018 4 rejection, the applicant approached the Tribunal seeking for the following reliefs:

(i) Direct the respondents to grant enhanced subsistence allowance at the rate of 75% in terms of FR 53, from the eligible date ie. 17.9.2007 to 24.12.2011.

(ii) Direct the respondents to sanction HRA & CCA from August 2010 onwards, which was irregularly stopped without any order.

(iii) Call for the records leading to the issue of Annexure A13 and A14 and set aside Annexure A13 and A14.

(iv) Direct the respondents to grant revision of pay scale from 1.1.2006 onwards upto 18.6.2007

(v) Call for the records leading to the issue of Note 4 to Clause (7) of CCS (RP) Rules, 2008 and set aside the same.

(vi) Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.

(vii) Award the cost of these proceedings

3. The respondents entered appearance and filed their reply statement contending among others that the applicant was removed from the service on 24.12.2011 and the appeal against the penalty of removal was also disposed of by the authority. The claim for subsistence allowance to be paid at 75% of his last pay O.P.(CAT) No.15 of 2018 5 drawn in terms of Rule 53 is not maintainable. The respondents contended that though after ninety (90) days of suspension, the competent authority is bound to review the suspension, it is not mandatory for the authorities to review the payment of subsistence allowance. As far as the claim for HRA and CCA was concerned, the said claim was limited to the first One hundred and eighty (180) days and that too the applicant had not submitted the certificate of domicile in the prescribed format.

4. On consideration of the pleadings and materials on record, the Tribunal by Ext.P3 order came to the conclusion that the applicant was entitled to get the subsistence allowance at the rate specified and also the HRA and CCA. Two months' time was granted to make the payment.

5. Challenging the said order the respondents in the Original Application have approached this Court with the present Original Petition.

O.P.(CAT) No.15 of 2018 6

6. We have heard Sri. T.V. Vinu, the learned counsel for the petitioners and Sri S. Vishnu, the learned counsel appearing for the respondent/applicant.

7. The learned counsel for the petitioners would contend that in so far as there is no mandatory requirement of reviewing the rate at which the subsistence allowance has to be paid, the Tribunal erred in allowing the Original Application. He further pointed out that there is no reasonable basis for the Tribunal to arrive at such a conclusion. In so far as the claim for HRA and CCA are concerned it is pointed out by the learned counsel for the petitioners that there was no application in the prescribed format and therefore directions could not have been issued.

8. On the other hand the learned counsel for the respondent/applicant pointed out that the order of the Tribunal is perfectly justified and does not call for any interference at the hands of this Court in exercise of the powers under Article 227 of the Constitution of India. According to the learned counsel, if the O.P.(CAT) No.15 of 2018 7 claim of the applicant for HRA and CCA was not in terms of the requisite format, the same should have been brought to the notice of the applicant so that could have been applied in the requisite format, therefore, prayed for dismissal of this Original Petition.

9. We have considered the rival submissions raised across the bar and have perused the records.

10. The question which falls for consideration is as to whether the authority should review the order of suspension and also consequently enhance the rate at which the subsistence allowance is required to be paid. The relevant rule which requires the review of the suspension is Rule 53 of the Fundamental Rules which is extracted below:

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 allowances to which he would have been entitled had he been suspended while in military employment;

O.P.(CAT) No.15 of 2018 8

(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 the basis of 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 percent 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 reduced 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 O.P.(CAT) No.15 of 2018 9 suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances.

(2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation :

Provided that in the case of a Government servant dismissed, removed or compulsorily retired from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement, under sub-rule (3) or sub-rule (4) of Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods, as the case may be, fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him; where the subsistence allowance and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this proviso shall apply to him.

11. There cannot be any doubt on the point of law that after an initial ninety (90) days of suspension the same ought to be reviewed by the disciplinary authority. The argument of the learned counsel for the petitioners that though the disciplinary O.P.(CAT) No.15 of 2018 10 authority is bound to review the order of suspension it is not mandatory to review the rate at which the subsistence allowance has to be paid. Therefore, notwithstanding the review of suspension, the employee cannot, as a matter of right, insist that he should be paid a subsistence allowance at an enhanced rate.

12. We are not however impressed by the arguments of the learned counsel for the petitioners. Rule 53 of the Fundamental Rules extracted above does not give such a discretion to the disciplinary authority to review the rate at which the subsistence allowance is to be paid. When the suspension is reviewed and found to be extended beyond 90 days, the employee under suspension is definitely entitled for the payment of enhanced rate of subsistence allowance. Therefore, in our considered view, the argument of the learned counsel for the petitioners that the disciplinary authority has got a power not to increase the rate of subsistence allowance cannot be sustained. O.P.(CAT) No.15 of 2018 11

13. In view of the above, we hold that the respondent/applicant was entitled to have the subsistence allowance paid at 75% of the last drawn salary. However, that cannot be the case in relation to HRA and CCA. Admittedly, the claim for HRA and CCA ought not have been allowed by the Tribunal without satisfying itself that the conditions for payment of the same are met. The conditions specifically set out, require the employee to submit the certificate showing the domicile in order to claim the benefit. Having not been done, the Tribunal ought not have allowed the claim per se at the first instance itself. However, in our considered view, the petitioners ought to have granted the applicant an opportunity to resubmit the request for HRA and CCA in the prescribed format and thereafter proceed to consider the same accordingly. The said method the Tribunal failed to follow while rendering the order in the Original Application.

In the result, we are of the considered view that the petitioners are entitled to succeed only in part. Interference on O.P.(CAT) No.15 of 2018 12 Ext.P3 order to the extent of directing the petitioners herein to pay the enhanced subsistence allowance is set aside. The direction to respondents/petitioners herein to grant HRA and CCA benefits to the applicant is set aside. However, the applicant is given liberty to apply for HRA and CCA in the prescribed format within a period of three weeks from the date of receipt of a copy of this judgment. On receipt of such application, the same shall be scrutinized by the petitioners and if found in order, shall release HRA and CCA to the applicant within a further period of one month from the date of receipt of the application.

The Original Petition is ordered accordingly.

Sd/-

AMIT RAWAL, JUDGE Sd/-

EASWARAN S., JUDGE NS O.P.(CAT) No.15 of 2018 13 APPENDIX OF OP (CAT) 15/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00122/2014 DATED 09.02.2014 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH.

ANNEXURE TRUE COPY OF COMMUNICATION DATED 16.09.2010 ISSUED A15 BY THE APPLICANT TO THE SENIOR POSTMASTER, GPO, TVM.

ANNEXURE TRUE COPY OF THE ORDER NO.VIG/1-9/DLGS/HQ/2013 A14 DATED 03.02.2014 ISSUED BY THE 2ND RESPONDENT. ANNEXURE TRUE COPY OF THE ORDER NO.F1/6-1/07-08 DATED A13 10.01.2014 ISSUED BY THE 1ST RESPONDENT. ANNEXURE TRUE COPY OF THE HEARING NOTE DATED 02.01.2014 A12 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT.

ANNEXURE TRUE COPY OF THE ORDER DATED 27.11.2013 IN OA A11 NO.900/2013 OF THE CAT, ERNAKULAM BENCH. ANNEXURE TRUE COPY OF NOTIFICATION NO.1/1/2008-IC DATED A10 29.08.2008 ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE (RELEVANT PORTION). ANNEXURE A9 TRUE COPY OF THE REPRESENTATION DATED 03.01.2013 TO THE 1ST RESPONDENT.

ANNEXURE A8 TRUE COPY OF THE REPRESENTATION DATED 29.11.2011 TO THE 1ST RESPONDENT.

ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED 21.11.2011 TO THE 1ST RESPONDENT.

ANNEXURE A6 TRUE COPY OF THE REPRESENTATION DATED 24.12.2010 TO THE 1ST RESPONDENT.

ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 16.09.2010 TO THE 1ST RESPONDENT.

ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 08.03.2010 TO O.P.(CAT) No.15 of 2018 14 THE 1ST RESPONDENT.

ANNEXURE A3 TRUE COPY OF THE REPRESENTATION DATED 21.02.2008 TO THE 1ST RESPONDENT.

ANNEXURE A2 TRUE COPY OF THE REPRESENTATION DATED 15.11.2007 TO THE 1ST RESPONDENT.

ANNEXURE A1 TRUE COPY OF THE MEMO NO.F1/6-1/07-08 DATED 19.06.2007 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT IN OA NO.

180/00122/2014 DATED 02.04.2014, FILED BY THE PETITIONERS.

EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO. 180/00122/2014 DATED 31.03.2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

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