Central Administrative Tribunal - Ernakulam
Jaipal Swami vs The Secretary Department Of Revenue ... on 11 May, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00450/2020
Original Application No.180/00279/2022
Thursday, this the 11th day of May, 2023
CORAM:
Hon'ble Mr. Justice K Haripal, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
Original Application No.180/00450/2020
Jaipal Swami, Aged 40 years,
S/o. Mahadev Prasad Swami,
Deputy Commissioner of Income Tax (under suspension),
Office of the Principal Chief Commissioner of Income Tax,
Kerala, Kochi - 682 018.
Residing permanently at: Flat No.74,
Building No.5, Sector 7,
C.G.S. Colony, Antop Hill, Mumbai - 400 037 - Applicant
(By Advocates: Mr. M. R. Hariraj, Mr. K. Rajagopal, Ms. Thanuja
Roshan George, Ms. Ganga A. Sankar, Mr. Viswajith C.K, Mr.
Chackochen Vithayathil, Ms. Gisha G. Raj & Mr. Rejivue K.C)
VERSUS
1. Union of India, represented by the
Secretary to Government of India,
Department of Revenue,
Ministry of Finance,
New Delhi - 110 011.
2. Central Board of Direct Taxes,
Represented by its Chairman,
New Delhi - 110 011.
3. Under Secretary (V&L),
Central Board of Direct Taxes, North Block,
New Delhi - 110 011.
4. Principal Chief Commissioner of Income Tax,
3rd Floor, Aayakar Bhavan,
Maharishi Karve Road,
Mumbai - 20.
O.A No.180/450/2020
O.A No.180/279/2022
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5. Principal Chief Commissioner of Income Tax,
Kerala, C R Building,
I S Press Road,
Kochi - 682 018. -Respondents
(By Advocate: Mr. Anil Ravi, ACGSC)
Original Application No.180/00279/2022
Jaipal Swami, Aged 42 years,
S/o. Mahadev Prasad Swami,
Deputy Commissioner of Income Tax (under suspension),
Office of the Principal Chief Commissioner of Income Tax,
Kerala, Kochi - 682 018.
Residing permanently at: VPO - Buchawas,
Tehsil - Taranagar, Churu District, Rajasthan - 331 304 - Applicant
(By Advocates: Mr. M. R. Hariraj, Mr. Viswajith C. K, Ms. Gisha G.
Raj, Mr. Rejivue K. C & Ms. Alina Anna Kose)
VERSUS
1. Union of India, represented by the
Secretary to Government of India,
Department of Revenue,
Ministry of Finance,
New Delhi - 110 011.
2. Central Board of Direct Taxes,
Represented by its Chairman,
New Delhi - 110 011.
3. Under Secretary (V&L),
Central Board of Direct Taxes, North Block,
New Delhi - 110 011.
4. Principal Chief Commissioner of Income Tax,
3rd Floor, Aayakar Bhavan,
Maharishi Karve Road,
Mumbai - 20.
5. Principal Chief Commissioner of Income Tax,
Kerala, C R Building,
I S Press Road,
Kochi - 682 018. -Respondents
(By Advocate: Mr. Sreedut S, ACGSC)
This Original Applications having been heard on 30th March, 2023,
the Tribunal on 11th May, 2023 delivered the following: -
O.A No.180/450/2020
O.A No.180/279/2022
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ORDER
Per: K. V. Eapen, Administrative Member The two O.As are being clubbed together for a common order. The applicant and respondents in both the O.As are the same. O.A No.180/450/2020 relates to a prayer for revision of subsistence allowance under Fundamental Rule 53 (FR 53). O.A No.180/279/2022 relates to a prayer for change of headquarters during the period of suspension. The applicant in both these O.As is a Deputy Commissioner of Income Tax (under suspension). While working as Deputy Commissioner of Income Tax in Mumbai, he was proceeded against on a criminal charge and was arrested and detained in custody. He was placed under suspension by an order dated 03.11.2017 issued by the Central Board of Direct Taxes (CBDT) a copy of which is produced at Annexure A1 in O.A No.180/450/2020. He seeks the following relief in the O.A: -
"i. To call for records leading to Annexure A8 and quash the same;
ii. Declare that the suspension is prolonged for reasons not attributable to the applicant and that applicant is entitled to have his subsistence allowance revised from the date of completion of three months of suspension under FR 53 (1)(ii)(a)(i) and direct the respondents to revise the subsistence allowance accordingly; iii. To direct the respondents to draw and disburse to arrears of subsistence allowance due to the applicant from the date of suspension and the date of completion of three months in the suspension with interest at the rate of 12% per annum on delayed payment;
iv. grant such other reliefs as may be prayed for and the court may deem fit to grant, and i. to grant the costs of this Original Application."
2. In OA 180/279/2022 the applicant is aggrieved by the refusal of respondents to change his headquarters from Kochi during the period of suspension. He seeks the following relief in this O.A: -
O.A No.180/450/2020 O.A No.180/279/2022 4 "i. To call for the records leading to Annexure A1&Annexure A6 to be extend it refuses to change the Head Quarters of the applicant; ii. To declare that applicant is entitled to be granted change of headquarters based on his request in accordance with stipulation in OM No.11012/17/2013 dated 02.01.2014 and to direct the respondents to consider applicant for change of headquarters to Jaipur as per said OM;
iii. grant such other reliefs as may be prayed for and the court may deem fit to grant, and iv. to grant the costs of this Original Application."
3. We shall take up the issues in the O.As serially, beginning with the O.A No.180/450/2020. As stated, the applicant had been placed under suspension by the CBDT vide their order dated 03.11.2017, produced at Annexure A1, due to his detention in custody on a criminal charge for a period exceeding 48 hours and registration of a case in respect of a criminal offence. It was also indicated in the order that during the period for which the order would remain in force, the headquarters of the applicant would be in Kochi, Kerala and that he would not leave headquarters without obtaining the previous permission of the Principal Chief Commissioner of Income Tax, Kerala. Further, as per the order dated 03.11.2017 issued by the CBDT, produced at Annexure A2, the applicant was allowed to draw subsistence allowance admissible under FR 53(1) r/w FR 53(2).
4. When the applicant first filed the OA No.180/450/2020 in September 2020, he had not been paid subsistence allowance from the date of his suspension. He made a representation to the authorities dated 27.11.2018, produced at Annexure A3, requesting for subsistence allowance from the date of his suspension with interest. When he got no response, he submits that he gave another representation dated O.A No.180/450/2020 O.A No.180/279/2022 5 28.02.2019, produced at Annexure A4. Meanwhile, he had filed O.A 180/438/2019 also before this Tribunal, as disciplinary action had been ordered against him based on the same issue which had led to the criminal case against him. This Tribunal on 01.10.2019 passed an interim order produced at Annexure A5 in O.A 180/438/2019 directing that none, from the list of witnesses proposed by the Department in the departmental proceedings who figures as witnesses in the criminal proceedings, are to be called for examination till the disposal of the O.A or till the trial is completed in the criminal proceedings. It is submitted by the respondents in O.A 180/279/2022 that this order was later amended. Meanwhile, the applicant kept asking the authorities for release of subsistence allowance pursuant to his suspension. He made another representation, produced at Annexure A6, on 03.02.2020, in which he asked for providing him subsistence allowance at the rate of 50% for the initial 3 months‟ period after suspension, and at the rate of 75% thereafter, on the ground that he had been going through a severe financial crisis and was not able to defend himself properly in proceedings pending against him. He also self-certified that he had not been engaged in any other business or profession during the suspension period. He asked for release of the arrears of subsistence allowance with simple rate of interest.
5. It was soon after the Annexure A6 representation was submitted that the respondents passed the impugned order at Annexure A8 dated 24.04.2020. In this order, marked to the applicant, it was indicated that the rate of subsistence allowance to be paid to him will remain O.A No.180/450/2020 O.A No.180/279/2022 6 unchanged with respect to the permissible subsistence allowance as per order dated 03.11.2017 (Annexure A2), i.e., at the rate as stated in the FR 53(1)(ii)(a), which is an amount equal to the leave salary if the officer had been on leave on half average pay or on half pay along with dearness allowance, if admissible, that may be continued in accordance with FR 53(1) read with FR 53(2). He submits that, thereafter, monthly subsistence allowance was paid to him from June 2020 onwards, though arrears of the allowance were not paid. He submits that the refusal to revise the subsistence allowance is also illegal.
6. The applicant then made another representation dated 22.08.2020, produced at Annexure A9. He contended that the decision not to pay him the enhanced rate of subsistence allowance after 3 months of his suspension at the rate of 75% was not as per Rules and judicial pronouncements. He submitted that across cadre controlling authorities‟ subsistence allowance was being provided at the enhanced rate after 3 months and if the same was not provided to him also at the enhanced rate, then it would be in violation of his fundamental rights guaranteed under Article 14 of the Constitution of India. Further, he had not been required to submit any justification as to why he had to be provided with subsistence allowance at enhanced rate. He submitted that he never caused his suspension to be prolonged in any manner whatsoever. He had been cooperating in all the proceedings, be it regarding the court case, investigation or in the departmental proceedings. He also referred to case of V. S. Satheesachandrakumar v The Senior Superintendent of Post in O.A No.180/00122/2014, wherein, this Tribunal had held that in expiry O.A No.180/450/2020 O.A No.180/279/2022 7 of the period of 90 days, review has to be made by the authority concerned and a decision has to be rendered as to whether the subsistence allowance should be enhanced by 50% of the allowance originally granted. He contested that in the absence of any decision taken against him, it has to be presumed that he is entitled to get subsistence allowance at the enhanced rate, which will be 75% of the basic pay and DA/HRA etc., should also be added as per FR53.
7. The respondents filed a reply statement, in January 2021, a few months after filing of the O.A. It appears that just before the reply statement was filed, the respondents took action to release the arrears of subsistence allowance admissible to the applicant. Due to this action some part of the relief sought by the applicant has already been met. The respondents indicated in the reply statement that they had disbursed the arrears of subsistence allowance for the period from 28.02.2019 to 31.05.2020 @ 50% on 05.01.2021. Similarly, arrears for the period from 19.10.2020 to 31.12.2020 calculated at the rate of 75% was released also on 05.01.2021. In addition, action was also taken to release arrears of subsistence allowance payable to him for the period from 22.09.2017, the date of his suspension to 28.02.2018, date of his joining in Kerala region. He had been in receipt of subsistence allowance @50% till enhancement of his subsistence allowance vide CBDT‟s order dated 19.10.2020. In effect, therefore, the respondents submitted that they had released the subsistence allowance to the applicant as follows: - from 22.09.2017 (the date of suspension) upto 18.10.2020 at the rate of 50% and from 19.10.2020 at the rate of 75%.
O.A No.180/450/2020 O.A No.180/279/2022 8
8. It appears, therefore, from the above information that part of the relief sought in the O.A has been met. However, the applicant seeks interest and enhancement of the percentage of subsistence allowance to 75%, 3 months after his date of suspension, which in other words comes to an enhancement of allowance to 75% with effect from 22.12.2017. This is, therefore, the only relief that is being asked for at present in this O.A.
9. It is to be noted that the only averment made by the respondents in this connection in this regard is that the Suspension Review Committee, in its meeting held on 15.04.2020 had noted that the representation of the applicant regarding subsistence allowance had not been received and there was no valid ground for enhancement of subsistence allowance. Therefore, the competent authority had decided that the rate of subsistence allowance paid to him would remain unchanged, with respect to the permissible subsistence allowance as per the order dated 03.11.2017, i.e., at the rate as stated in FR 53(1)(ii)(a) which is an amount equal to the leave salary if the officer had been on leave on half average pay or on half pay along with dearness allowance, if admissible, that may be continued in accordance with FR 53(1) read with FR 53(2) (order produced as the impugned order at Annexure A8). However later, upon receipt of the representation of the applicant with regard to revision of subsistence allowance, the competent authority subsequently had decided to increase the subsistence allowance by 50% of the subsistence allowance vide its order dated 19.10.2020. It was decided to increase the O.A No.180/450/2020 O.A No.180/279/2022 9 subsistence allowance by 50% of the subsistence allowance admissible which had been ordered as per the earlier order dated 03.11.2017, which was continued vide order dated 24.04.2020. This enhancement was ordered on 19.10.2020. The only other aspect that the respondents have touched on in their reply statement is that the suspension of the applicant had been reviewed by the Suspension Review Committee. Since the allegations against the officer were found grave in nature, this had also led to initiation of disciplinary proceedings for major penalty under Rule 14 of the CCS (CCA) Rules, 1965. It was indicated that the CBI had filed a charge sheet against the applicant under section 120-B IPC and Section 7, 12 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 & substantive offences thereof on 18.11.2017 vide Special Cases No. 97 of 2017 which was at the evidence stage of trial. The reply statement recorded objection against revocation of the suspension on the ground that the offences committed by the applicant are serious nature involving moral turpitude.
10. As can be seen from the above, there are no specific statements made by the respondents in relation to the plea for the revision of subsistence allowance from an earlier date. At the same time neither have there been any authorities cited in this regard on either side. However, this Tribunal has dealt with the issue in a few cases in the recent past. O.A No.180/134/2016 had been filed by an suspended Postal Department employee for a direction to the respondents to grant enhanced subsistence allowance in terms of FR 53 from the „eligible‟ date to the applicant therein. This Tribunal had gone into the issue in some detail and at O.A No.180/450/2020 O.A No.180/279/2022 10 paragraph 8 of the order dated 16.03.2021 in O.A 180/134/2016, it had been recorded as follows: -
"8. We first take up the matter of grant of the first relief, namely, for a direction to the respondents to grant enhanced subsistence allowance in terms of FR 53 from the eligible date as per the statutory requirements. In this regard, learned counsel for the applicant has submitted that in terms of FR 53, the authority placing an employee under suspension is bound to pass an order maintaining or increasing or decreasing quantum of subsistence allowance on the completion of three months of suspension. In the instant case it is argued that the applicant was suspended on 08.10.2009 and thus the respondents were bound to pass an order either maintaining or enhancing or decreasing the quantum of subsistence allowance on 08.01.2010. However, an order was issued enhancing subsistence allowance, only after 15 months (Annexure A-3), which is alleged to be a violation of the statutory provision binding on the respondents. Further it is argued that the enhancement as granted in Annexure A-3 should have been made effective from 08.01.2010 itself, as FR 53 clearly states that amount of subsistence allowance may be increased by a suitable amount not exceeding 50% of the subsistence allowance admissible during the period of 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. It is argued by learned counsel that this principle has been blatantly violated as here the applicant cannot be held responsible in any way for prolongation of suspension. In such circumstances, it is submitted that he is eligible and entitled to be granted 75% of pay as enhanced subsistence allowance ie., 50% of the initial subsistence allowance at 50% of pay, which comes to 25% and therefore when added to the initial 50% already sanctioned, the employee becomes entitled to 75%. However, the learned counsel for the respondents contested this assertion. He submits that the applicant was granted enhanced subsistence allowance by Annexure A-3 dated 04.01.2012 by a 10% increase. It is submitted that the enhancement is not mandatory as per FR 53 as proviso to FR 53 (1)(ii) (a) reads as follow :
"FR 53(1) .........
(i) .........
(ii)(a) .........
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 :
O.A No.180/450/2020 O.A No.180/279/2022 11
(i) the amount of subsistence allowance may be increased 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 for reasons to be recorded in writing, not directly attributable to the Government servant;
(ii) the amount ......."
11. Further, the findings of this Tribunal in this regard as recorded at paragraphs 9 to 12 of the order dated 16.03.2021 in O.A 180/134/2016 were as follows: -
"9. It is submitted by the counsel for the respondents that FR 53(1) does not stipulate that it is mandatory to either enhance or decrease the subsistence allowance soon after the first three months of suspension. It is argued that the proviso to FR 53(1)(ii)(a) only states that the relevant authority is competent to vary the amount of subsistence allowance and, that too, for any period subsequent to the period of the first three months. It is thus argued that he may choose not to do any variation at all. It is further submitted that an increase in the subsistence allowance cannot be claimed as a matter of right. Further, the authority competent to do so can choose to do so when he decides to do it. It is thus submitted that the disciplinary authority can also decide not to vary the quantum of subsistence allowance immediately after the first three months. In this case, the relevant authority competent to do so decided to enhance the subsistence allowance vide Annexure A-3 dated 04.01.2012 only from that date.
10. It is also submitted by the respondents that the Government of India, vide O.M's dated 17.06.1958 and 13.09.1974 has stipulated certain conditions for retrospective revision of subsistence allowance. The respondents have produced and marked this in the reply statement at Annexure R-3 and Annexure R-4 respectively. This has also been reproduced in Swamy's Compilation of FRSR, Part I General Rules at sub-para
(e) of Point No.3 (Subsistence Allowance) under Government of India's Orders under FR 53 relating to "Retrospective revision". It is noted therein that "Government do not consider it advisable that any ordersrevising the subsistence allowance should be given retrospective effect." It is further noted that ".....In case an order for variation of subsistence allowance under FR 53 is passed by the competent O.A No.180/450/2020 O.A No.180/279/2022 12 (disciplinary or appellate) authority after quite some time from the expiry of the requisite six (now three) months and that authority is satisfied that the variation has got to be given retrospective effect for reasons to be recorded in writing and orders accordingly, the same would be valid and binding on all concerned." The respondents' state that the applicant's claim in the O.A is only with respect to the enhancement of the subsistence allowance in terms of FR 53 from the eligible date as per statutory requirement. It is submitted by them that the relevant authority competent to do so did not find any reason for giving retrospective effect for the increase in subsistence allowance at the time of issuing Annexure A-3. Further, the applicant never raised any issue with respect to retrospective effect of subsistence allowance from the date of issue of Annexure A-3 ie. 04.01.2012 till the date of filing of the present O.A 27.12.2015, or even, when he was dismissed on 15.01.2013. Hence, the relief sought by the applicant with respect to retrospective revision of subsistence allowance is not tenable as it is a belated contention and is clearly affected by U.P. Jal Nigam (supra).
11. The respondents position is that is no provision mandating the Government to pronounce any new order relating to subsistence allowance immediately on expiry of three months, after the period of suspension. The wording in the proviso is "any period subsequent to the period of three months". They submit that any ruling or decision on the relief sought has to be pronounced on the basis of FR 53 only as indicated in the O.A and not under any other Service Rules affecting the official's terms of service. Such Rules may stipulate it as mandatory, but it is not so in FR 53.
12. We have considered the above arguments. We note that the relief sought in the O.A is against denial of enhancement of subsistence allowance from the eligible date is solely in terms of FR 53 provisions and is not under any other Service Rules, which may have governed the actual service of the applicant. Some of these Rules could very well prescribe other conditions. We have to thus look at the issue in terms of the provisions of FR 53 (1) (ii) (a) only. We are in agreement that it has not been stipulated therein that the subsistence allowance must be varied on completion of the first three months of suspension. It is clear that competent authority could decide not to vary the quantum of subsistence allowance after the first three months ie., neither increase nor decrease the subsistence allowance. As such, we hold that the O.A No.180/450/2020 O.A No.180/279/2022 13 provisions of FR 53 as it stands, read with the Government of India's orders earlier quoted (and produced at Annexure R-3 and Annexure R-4) does not provide that enhancement of subsistence allowance has to be granted or should be by a specific level or even be, as a matter of right, from the date when the period of three months has been completed ie., which in this case is with effect from 08.01.2010. Hence, we find that the first relief which has been sought for ie., enhancement of subsistence allowance by a factor of 50% to be due from 08.01.2010, lacks merit. We also note that as per Annexure R-3/Annexure R-4, if an order for variation of subsistence allowance under FR 53 is passed by the relevant (disciplinary or appellate) authority competent to do so after quite some time from the expiry of the requisite three months and if the authority is satisfied that the variation has got to be given retrospective effect for reasons to be recorded in writing and orders accordingly, the same would be valid and binding on all concerned. However, here the respondents have submitted that the authority did not find any reason for giving the retrospective effect for the increase in subsistence allowance at the time of issuing Annexure A- 3 and that, therefore, is the decision of the authority and has to be accepted."
12. However, in another Original Application (O.A 180/234/2021) an interim order was passed by this Tribunal on 23.09.2021 on the same issue(the O.A has not yet been finalised). The applicant counsel therein had brought to notice orders in relation to the enhancement of subsistence allowance passed by the Hon‟ble High Court of Delhi in WP(C) No.13811/2019 - Dr. Mahabir Prasad Yadav v Lakshmibai College on 27.07.2020. In this judgment the issue relating to enhancement of subsistence allowance as required by FR 53 (1)(ii)(a)(i) (ii) had been elaborately gone into. Paragraph 16 of the said judgment indicated as follows: -
"16. A plain reading of the Rule warrants a conclusion that when an employee is placed under suspension or deemed suspension, he shall be entitled to Subsistence Allowance at an amount equal to the leave salary which he would have drawn if he had been on leave, on O.A No.180/450/2020 O.A No.180/279/2022 14 half average pay or on half pay and in addition, Dearness Allowance, if admissible. Proviso further provides that where the period of suspension exceeds three months, Suspension Allowance can be varied by the Competent Authority. The Allowance can be increased to a suitable amount, not exceeding 50% of the Subsistence Allowance admissible during the first three months, if, in the opinion of the Authority, the period of suspension has been prolonged for reasons, to be recorded in writing, not directly attributable to the employee. The Rule, therefore, envisages enhancement of the Subsistence Allowance after a period of three months with a cautious caveat that where the employee is responsible for causing any delay in conclusion of the Departmental proceedings or the criminal case pending against him, the employer would be entitled to deviate and refuse enhancement. The Rule also mandates that the Competent Authority is required to give specific reasons that demonstrate that the delinquent was responsible for causing delay in the proceedings, in case it seeks to deny enhancement of Subsistence Allowance to 75%. Division Benches of the Punjab & Haryana High Court in the case of Rohtas Singh vs. State of Haryana & Ors., [2004 SCC OnLine P&H 67] and Gujrat Singh, B.D. & P.O. vs. State of Haryana, [1986 (3) S.L.R. 35], respectively, held that enhancement of Subsistence Allowance after the initial period, as envisaged in the Rule, shall be paid till such time as the suspension continues, in absence of any allegation attributable to the Petitioner resulting in prolonged suspension and that specific reasons need to be annotated to deny enhancement....."
13. In the above judgment, at paragraph 38, the Hon‟ble High Court of Delhi directed the respondents to re-convene the Review Committee which would examine the issue of enhancement in the rate of subsistence allowance in the light of FR 53 from 50% to 75% and other executive instructions applicable and to take a considered decision in accordance with law. After going through this judgment, it was only noted in our interim orders in O.A 180/234/2021 dated 23.09.2021 that the judgment of the Hon‟ble High Court of Delhi, as brought out, had not given any specific direction to enhance the subsistence allowance, but only has O.A No.180/450/2020 O.A No.180/279/2022 15 directed the respondents to take a decision in the light of FR 53, after examining the issue in accordance with law. It was also pointed out by the Tribunal in the interim order dated 23.09.2021 in O.A 180/234/2021 that the proviso in FR 53 (1) (ii) (a) only outlines the competence of the authority for varying the subsistence allowance by an increase after a period of 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 employee. Thus the said FR 53 (1)(ii)(a) had not clearly stipulated that the subsistence allowance must be varied on completion of the first three months of suspension.
14. Further going back to the earlier case decided by this Tribunal, in O.A 180/134/2016 dated 16.03.2021, where the enhanced subsistence allowance was given after a long gap, the argument of the respondents was that the proviso to FR 53(1)(ii)(a) only states that the relevant authority was competent to vary the amount of subsistence allowance and, that too, for any period subsequent to the period of the first three months. It was argued by them that the competent authority may, therefore, may not choose to do any variation at all. This Tribunal had agreed with this argument of the respondents in O.A 180/134/2016 and had not allowed the O.A.
15. Hence flowing from the above, in this matter too (in O.A 180/450/2020) in the light of the position taken by this Tribunal we do not find any strong basis for ordering the respondents to increase the subsistence allowance by the quantum asked for by the applicant O.A No.180/450/2020 O.A No.180/279/2022 16 on legal or other grounds. However in the interest of a proper consideration of this matter as it does not appear so far to have been done by the respondents, following the directions issued in the judgment of the Hon'ble High Court of Delhi in Dr. Mahabir Prasad Yadav (supra), we dispose the matter by a direction to the competent authority under the respondents to once again examine the request by the applicant for enhancement in the rate of subsistence allowance in the light of the provisions of FR 53 and other executive instructions applicable from the date of expiry of 3 months after suspension to 75%, i.e., from 22.12.2017 and take a considered decision on the same by passing a specific order in this regard. This order will be passed within a period of two months from the date of receipt of a copy of this order.
16. We now take up the issue agitated in O.A 180/279/2022. It should be noted at the outset that the applicant herein had earlier filed another O.A No.180/230/2021 challenging the decision of the respondents on his representation at Annexure A3 requesting for a change of headquarters under Rule 10(2) of CCS (CCA) Rules 1965 in view of his hardship. In this representation he had pointed out that his headquarters had been fixed at Kochi after he was placed under suspension on 03.11.2017. He had to surrender the official accommodation allotted to him in Mumbai due to shifting of his headquarters. After this, consequent to Covid-19 pandemic and the national lockdown, his family had to stay at his native place in Rajasthan. He had got his children admitted in a school in Sikar, Rajasthan. However, since the disciplinary proceedings and the trial were O.A No.180/450/2020 O.A No.180/279/2022 17 going on in Mumbai, he had also to be present in Mumbai. Thus, because his headquarters were at Kochi, Kerala, he had to be present in three places i.e., in Rajasthan, at his home to look after his children and parents, at Mumbai to attend the proceedings and trial going on against him, and also at Kochi, where his headquarters were fixed. He was finding it difficult to travel between these places. It was also proving to be a very high financial burden since he was living on subsistence allowance. Hence he had asked, vide the Annexure A3 representation dated 14.12.2020, to shift his headquarters from Kochi to Jaipur, Rajasthan. However, the respondents vide Annexure A4 dated 06.04.2021 issued an order stating that, considering the facts and circumstances of the case, the serious nature of allegations against the officer, the report of CBI, grant of prosecution sanctioned by the Disciplinary Authority and initiation of disciplinary proceedings for major penalty, the competent authority had decided to continue his suspension. The competent authority also decided not to change the headquarters of the applicant, which would remain the same as per the earlier order dated 03.11.2017.
17. The above order at Annexure A4 was challenged by the applicant in the aforementioned O.A 180/230/2021 before this Tribunal. This Tribunal noted in its orders dated 15.07.2021 produced at Annexure A5 that respondents had not given any proper reason for denying the request for change of headquarters. Accordingly, in view of pendency of the representation and since no specific reason is given for denying change of headquarters the competent authority among the respondents was O.A No.180/450/2020 O.A No.180/279/2022 18 directed to consider the representation of the applicant in the light of relevant rules and OM of DoPT No.11012/17/2013 dated 02.01.2014 on the subject and to pass a speaking order at the earliest or within two months from the date of receipt of a copy of that order.
18. The Government of India, Ministry of Finance, Department of Revenue then passed the order dated 10.09.2021, attacked as the impugned order at Annexure A1, wherein the representation was considered in the light of the directions of this Tribunal and DoP&T OM of 02.01.2014. It was noted that this OM states in its relevant portion as follows: -
"An officer under suspension is regarded as subject to all other conditions of service applicable generally to Government servants and cannot leave the station without prior permission. As such, the headquarters of a Government servant should normally be assumed to be his last place of duty. The order placing an officer under suspension should clearly indicate what his headquarters would be.
However, where an individual under suspension requests for a change of headquarters, there is no objection to a competent authority changing the headquarters if it is satisfied that such a course will not put Government to any extra expenditure like grant of T.A. etc. or other complications"
It was indicated at Paragraph 5 of the Annexure A1 order that as the above DoP&T OM, the competent authority does not have any discretion to accede to the request for change in headquarters when extra expenditure like grant of T.A etc. are to be incurred by the exchequer. However there was no objection to the granting of such a request or exercising of this discretion for change in Headquarters in the absence of such expenditure even though there is no mandate to do so. However, it O.A No.180/450/2020 O.A No.180/279/2022 19 was indicated in the Annexure A1 order that there were other complications such as the fact that there were two CBI cases, apart from the disciplinary proceedings under the CCS(CCA) Rules, 1965 against the applicant. In these cases there were specific references to movable and immovable properties in the name of the applicant and members of his family in Rajasthan. The CBI‟s Preliminary Enquiry Registration Report dated 02.08.2019 in the Disproportionate Asset (DA) cases stated that „place of the occurrence of the offence‟ as „Mumbai and Rajasthan‟ and that the applicant was reluctant to cooperate in the investigation of the said DA case.
19. It was indicated in the Annexure A1 order that the prayer made in the representation for change in the headquarters cannot be acceded to for the following reasons: - (a) Crucial evidences lie both in Mumbai and Rajasthan and these evidences have bearing on outcome of criminal case and disciplinary proceedings. Thus it is apprehended that posting of officer in either of these places may lead him to adversely influence the investigation. (b) The investigation of CBI in matter of Disproportionate Asset case was still in progress and some crucial evidences are under investigation. (c) Being a member of Indian Revenue Service implies that an officer can be posted anywhere in India as per the administrative requirements of the Department. (d) The place of headquarters cannot be claimed as a matter of right as it is an administrative decision taken after considering all the facts and circumstances of the case.
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20. Thus, in light of the above indicated facts and circumstances, as well as after considering the representation of the officer, the competent authority had decided that there was no reasonable cause brought to their notice to interfere with the earlier decision to maintain the headquarters of the applicant at Kochi, Kerala. It was further decided that the applicant would continue to be under suspension as decided in earlier order dated 06.04.2021.
21. The applicant has contested the above conclusions. He submits that when the change of headquarters is on his request, no TA will be due to him and he will not claim the same. Hence, there was no reason for the respondents to have any objections on this ground for the change of station under the aforementioned OM of DoP&T. Further, the contention that being a Central Government servant, he is liable to be transferred anywhere while not disputed does not mean that such power is unbridled. When a specific Government of India instruction covers the field, there is no just reason, whatsoever, not to consider the same in accordance with the circumstances and the mandates of his application. The respondents have not considered seriously whether there is any objection which is sustainable against the request for change of headquarters. The gravity of offences alleged, the possibility of a major penalty etc. are not relevant considerations for the purpose of determining change of headquarters of a suspended employee. It is pointed out that, in fact, normally, a suspended employee continues to be at his original headquarters. A change would be justified, at best, in order to prevent him from influencing the witnesses against him or otherwise interfering with the O.A No.180/450/2020 O.A No.180/279/2022 21 investigation/enquiry by virtue of his location. Thus it is submitted that for the respondents Kochi or Jaipur should not make any difference in this regard. In effect, the applicant is contesting the impugned order dated 10.09.2021 at Annexure A1 on the grounds that it has been issued without considering the relevant factors and it is based on irrelevant considerations.
22. The applicant also submits that the grounds like education of children, taking care of aged parents etc., are sufficient grounds for considering grant of transfer for employees on their request. The fact is that applicant's family is now in Rajasthan. The criminal trials and departmental enquiry are being held in Mumbai. There is no public interest or interest of administration for the applicant to be retained in Kochi as he is under suspension. This aspect has not being considered in the impugned order. The children of the applicant are students and the refusal to consider the same is arbitrary and discriminatory. Further, the contention that the applicant cannot be permitted to be at Rajasthan since an inquiry by the CBI in respect of disproportionate assets is pending is also unsustainable. It is submitted that the evidence in respect of disproportionate case would be the assets themselves and documents pertaining to them. It is not possible to „influence' these assets or documents. It is submitted that it is clear that the respondents are only fishing for reasons to reject the claim of the applicant. Further, the investigation by the CBI is now over as the charge sheet has been filed. Thus, if even after that the respondents are not willing to change the headquarters of the applicant, it is clearly discriminatory and arbitrary.
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23. The respondents have filed a statement in which they have indicated that the impugned order clearly indicates the reasons as to why the request of the applicant cannot be acceded to. There are currently two CBI cases ongoing against the applicant, apart from the disciplinary proceedings under under the CCS(CCA) Rules, 1965. There are specific references to movable and immovable properties in the name of the applicant and his family members in Rajasthan. The places of occurrence of the offence in the Disproportionate Asset (DA) Preliminary Enquiry Registration Report dated 02.08.2019 are Mumbai and Rajasthan. The CBI has also conveyed that the Applicant is reluctant to cooperate in the investigation of the said DA case. The Annexure A1 Order has clearly stated that the reason for denial of the prayer of the Applicant in the representation was that the posting of the Applicant in either of these places, (Mumbai or Rajasthan) may lead him to adversely influence the investigation which is still in progress since some crucial matters are still under investigation. Further, it is stated that though the CBI had filed 2 charge sheets, in one matter, it is still to examine some witnesses in the matter, namely in Special Case CBI No.100097/2007. This has been noted by the Tribunal in its order dated 04.08.2022 in OA No.438/2019 filed by the same applicant. Further, investigation/inquiry is still going on against the applicant under the CCS(CCA) Rules, 1965. The Charge memorandum dated 14.01.2019 and 30.9.2021 have been issued. The examination of witnesses is commencing after August, 2022, with leave being granted by the Tribunal, vide its aforesaid order dated 04.08.2022 by which stay on disciplinary proceedings was vacated.
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24. The respondents have again reiterated the same points mentioned in the Annexure A1 impugned order in their reply statement. They point out that the DoP&T‟s OM dated 02.01.2014 has not just mentioned about the grant of TA, but has also referred to "other complications". These complications have been brought out in the order. There is thus no inherent right accrued to an officer in terms of place of posting because of an officer‟s undertaking that no expenditure will be borne to the exchequer. The "other complications" have also been brought out clearly at paragraphs 7 and 8 of the order at Annexure A1. Thus, the competent authority has refused to consider the change of headquarters from Kochi, Kerala.
25. It is noted that the above reply statement had been filed in September 2022. While the O.As were under consideration of this Tribunal, the applicant filed the M.A No.180/254/2023 for a direction stating that due to the fact that he is now undergoing trial in Spl. Case 97/2017 and Spl. Case 931/2022 before the Special Court of CBI in Mumbai and the case was being heard on weekly basis, his presence in Court was constantly required. Hence, he had been requesting for extending leave from headquarters, which was however being granted at belated stages. This had imposed heavy expenditure on the applicant as he was only surviving on subsistence allowance. It is submitted that each time he had to give a mandate to come back to Kochi immediately, irrespective of the next posting date etc., which was causing huge expenses and inconvenience for him. It is submitted that no Rule can be O.A No.180/450/2020 O.A No.180/279/2022 24 used to mandate his presence in Kochi as his headquarters. Further, there are no administrative exigencies, as he is not performing any duties at Kochi. It is submitted that issuing orders demanding him to report back at Kochi, and then requesting for leaving headquarters again for further Trial dates is an unnecessary harassment to him. Hence, it was prayed in the MA that the Tribunal may direct the respondents to permit the applicant to remain away from headquarters until the trial was over in Spl Case 97/2017 and Spl. Case 931/2022 before the Special Court of CBI, Mumbai. After consideration of this plea this Tribunal on 16.03.2023 directed that no coercive steps shall be taken pursuant to Annexure MA 4 against the applicant. The applicant was allowed to remain in Mumbai till 30.03.2023. Later, on 30.03.2023 when the matter was again taken up, the O.A was reserved for orders. It was also ordered that the applicant was allowed to remain in Mumbai until final orders were passed in the O.A. The M.A was accordingly disposed of, on that date.
26. We have carefully considered the differing contentions made by the applicant and the respondents in relation to the plea for change of Headquarters of the applicant. In this connection, the only circular covering the issue brought to our notice is the aforesaid DoP&T Circular. The contents have already been brought out in detail. It is clear that there should generally be no objection by a competent authority in changing the headquarters of an employee under suspensions if satisfied that such a course will not give effect to any extra expenditure like grant of TA or „other complications‟. In relation to the grant of Travelling Allowance (TA) etc., it had already been clarified that since the headquarters is O.A No.180/450/2020 O.A No.180/279/2022 25 being changed on the applicant‟s own request, there would be no grant of TA or extra expenditure involved in the transfer if ordered. As far as the more important issue of other complications is concerned, we have carefully gone through the points made in the impugned order at Annexure A1. At the outset we note that this order was passed in September 2021. Since more than one and half years have now gone by, the situation should have changed considerably since that particular point of time. It has been informed to us that the investigation in both the cases is also complete. As per the status report which has been produced regarding both the cases by the applicant, it also appears that evidence is being heard in Spl. Case Nos.97/2017 and that Spl Case No. 931/2022 had been posted for compliance on 19.04.2023. Even in the second case, it appears from the report that issues relating to valuation of the assets are being considered by the Special CBI Court. Hence, effectively, it appears to us that the prosecuting authority, the CBI has completed the collection of all the evidence required and is now only producing the same before the Court for further consideration. It does not appear from this that there is any further investigation left and that any more crucial evidences have be collected either in Mumbai or Rajasthan. On the other hand, the applicant has brought out a fair case for consideration of change of his headquarters to Jaipur in the light of family considerations, the education of his children and age of his parents. In any case being in Jaipur would enable him to attend the Special CBI Court as well as the disciplinary proceedings in Mumbai without much difficulty.
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27. In light of the overall facts and circumstances as has been brought out above and taking into account the progress in the matter since the orders dated 10.09.2021 at Annexure A1 were issued, we are allowing the O.A No.180/279/2022. We find that the applicant is entitled to be granted a change in headquarters based on his request to post him in Jaipur, in light of the DoP&T OM dated 02.01.2014. The respondents are directed to issue necessary orders in this regard within 30 days of receipt of a copy of these orders.
28. The O.As are accordingly disposed of with the directions to the extent indicated above at paragraph 15 and paragraph 27. No further orders in relation to cost are passed in both the O.As.
(Dated this the 11th day of May, 2023)
(K. V. Eapen) (Justice K. Haripal)
Administrative Member Judicial Member
bp
O.A No.180/450/2020
O.A No.180/279/2022
27
List of Annexures
Original Application No.180/00450/2020
Annexure A1- A true copy of the order F.No.C-11017/5/2017-V&L dated
03.11.2017.
Annexure A2- A true copy of the order No.C-11017/5/2017-V&L dated
03.11.2017.
Annexure A3- A true copy of the representation dated 27.11.2018 submitted
by the applicant.
Annexure A4- A true copy of the representation dated 28.02.2019 submitted
by the applicant.
Annexure A5- A true copy of the interim order dated 01.10.2019 in O.A
No.438/2019.
Annexure A6- A true copy of the representation dated 03.02.2020 submitted
by the applicant.
Annexure A7- True copy of the order No.Pr.CCIT/Mum/Vig./8/2017/2018-
19/1531 dated 18.02.2019.
Annexure A8- A true copy of the order No.C-11017/5/2017-V&L dated
24.04.2020.
Annexure A9- True copy of the representation dated 22.08.2020 submitted by
the applicant.
Original Application No.180/00279/2022
Annexure A1- A true copy of the order F.No.C-11017/5/2017-V&L dated
10.09.2021.
Annexure A2- A true copy of the order F. No.C-11017/5/2017-V&L dated
03.11.2017.
Annexure A3- A true copy of the representation dated 14.12.2020 submitted
before the 2nd respondent.
Annexure A4- True copy of order F.No.C-11017/5/2017-V&L dated
06.04.2021.
Annexure A5- True copy of final order dated 15.07.2021 in O.A
No.230/2021.
Annexure A6- True copy of the Order No.F.No.C-11017/5/2017-V&L dated
22.03.2022.
Annexure MA1- True copy of representation dated 24.02.2023.
Annexure MA2- True copy of post-dated permission dated 21.12.2022 and
23.01.2023.
Annexure MA2- True copy of email dated 09.03.2023.
Annexure MA3- True copy of letter dated 06.03.2023 accepting Annexure MA
1.
Annexure MA4- True copy of letter dated 09.03.2023 accepting extension
sought.
Annexure MA5- True copy of email dated 15.03.2023 seeking permission to
extend leave from headquarters.
Annexure MA6- True copies of the daily orders/roznamas in Spl. Case
No.97/2017 and Spl. Case No.931/2022 before Hon‟ble Special Court CBI, Mumbai.
***** O.A No.180/450/2020 O.A No.180/279/2022