Central Administrative Tribunal - Mumbai
Shankar Narahari Deshpande vs M/O Statistics on 5 June, 2018
1 OA No.176/2017 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH , MULEAI O.A.210/00176/2017 Dated this"-iothe Smday of Inna , 2018 Coram: Hon'ble Shri R. Vijaykumar, Member (A).
1. Shankar Narahari Deshpande .Age 57 years, Occ: Retired, Residing at Amonora Park Town, Tower--20--Flat No.100l, Sector R~5 I \ 5 Hadpsar--Khardi by~pase Road I Hadpaar, Punew4llO44.
...Applicant.
( In person ).
VBI S118
1. 'Union of India, through the Secretary, Statistics-and Programme Implementation National Sample Survey Organization, Sardar Patel Bhavan I New Delhi--llOOOl.
2. .Additional Director General NSSO (POD), P. K. Puram Road, New DelhimllOO66.
3. Dyu Director General NSSO (FOD), Regional Office, Govt. of India, Kendriya Sadan, Railway Station, Akurdi, Pune~4llO44.
4. Director, Ministry of Statistics and P. I. NSSO (FOD), Regional Office, Central Facility Bldg., N--7, CIDCO, Aurangabad~43lOOl.
- ... Respondents.
( By Advocate Shri V. B. Joshi ).
O_R Pr r r r §.B rrr This is an application filed under Section 19 emf the Administrative Tribunals Act, 1985 seeking the following reliefs:~ \ \._ .
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"(a) This Hon'ble Tribunal be pleased to quash and set aside the impugned order at Annexure A--l(i) ' passed tn; the Respondent whereby the Respondents denied' the applicant his arrears of pay and allowances for .his suspension period (March~2008 to November- 20lO) being violation and contrary to the concerned provisions of law therefore being illegal, arbitrary and unconstitutional.
Um Direct the respondents to pay arrears of pay and allowances for his suspension period (March 2008 to November--20l0).
(c) _To issue further orders or directions to time Respondents .as this Hon'ble Tribunal deems fit and_proper.
2. The brief facts of the case are that when the applicant was posted at various places in India as a Statistics Investigator, he was |.| 1 found to have engaged in behavior contrary to the Conduct Rules and was suspended from 07.03.2008, which continued to 16.11.2010 after which the 1 F suspension was revoked and" upon completion of \ \ three related departmental inquiries, he was compulsorily retired in orders dated 28.11.2011. 5 Meanwhile, on 19.04.2011 he appears to have filed Z a request to the concerned authority for payment i of arrears of pay and allowances for the period \ of suspension. The final orders of the Competent 1 5 Authority on the Disciplinary Inquiries conducted 2"' = 3;.m_ | _.-
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"Keeping in view the gravity of the 1
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misdemeanor being exhibited by the 1
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punishment of removal from service but, keeping in mind his length of service and humanitarian considerations inn that Ina is .not denied pensionery benefits, in exercise the _powers conferred'.by CCS (CCA) Rules, l965, I hereby' impose the-_penalty' of' compulsory' 131 11 11 11 retirement from service on Shri S. 1 N; Deshpande, SI Grade~II, NSSO E 1 (FUD), Pune with immediate effect." 1 1 1
3. Based.cn1 the applicant's representation B 1 1 dated 19.04.2011 forwarded on 10.08.2011, the 1 1 11 11 Competent Znnfinnfiiqr passed time following cmders by way of regularizing the period of suspension:
"it has been decided to treat the entire period of suspension as 111 111 1,1 'Leave Due' and the same may be regularized for the 'purpose of _pension. In case the official does not have enough full pay or half pay leave to regularize the entire period of suspension, the 1 11 unadjusted balance period shall be 11 regularized as leave without_pay to 1 be counted as service for pensionery"benefits."
4. The applicant had filed 632/2014 and 1 %444 234/2014 before this Tribunal against the orders 41 of punishment indrfl1 were, thereafter, dismissed by a common order dated 06.01.2016. The applicant 1 1 131 131 then realized that he would have to contest the 1 11 11 i orders regularizing his suspension period and |_ sI1'=. .I :» |' '..
-' @ 11 '-'=.==T fig? 1 ,< .-Kr r ....- -" Q; 1 1, 5 i i 4 OANo.176/2017 thereafter; filed Ema; application cni 04.02.2016 1 which is effectively after 3 years, 5 months and 5i 25 days of delay. 5. The applicant has claimed that the
impugned orders dated 25.10.2011 have been issued unilaterally absorbing his Earned Leave and Half Pay Leave within the period. of suspension as 1 5 1 leave due anui that respondents have also recovered the HBA interest from the gratuity payable to the applicant. The applicant contends 1 that these- actions are Inn: in. accordance "with Government orders anmi are illegal. The has also i filed an MA No.237/207 for condoning the delay in filing this application.
6. With. reference ix) the application for condonation of delay, respondents have contested condonation cni the basis idem: the applicant has not shown any reasonable grounds for the delay and has only argued that he learnt about the need to file such an application after his Ohs on the punishments awarded were disposed of. Therefore, the delay is fatal to the application which needs to rue dismissed cni that rnnnn: based zni various 5 judicial proceedings.
7. In their reply affidavit, the resppndents have referred to the provisions of e.
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;1 5 OA No.176/2017 FR--54B in proviso 5 which reads as under:
"In cases other than those falling - under sub--rules (2)and (3), the i 1 Government servant shall, subject 1 to the provisions of sub~rules (8) i and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as tine Competent Authority neg' determine, iafter giving notice to the Government servant of the quantum _proposed and after considering the representation, .if anyy submitted lnr him .hi that connection "within such period (which in no case shall exceed 60 days from the date on which the notice has been served) as may be specified in the notice."
8. They have stated that the applicant was pabd subsistence allowance @508 :&mmn 07.03.2008 to 13.11.2008 and @758 from 14.11.2008 to 1 1 16.11.2010 and based on his letter dated 09.06.2011 requesting arrears, time Ministry had disposed his representation in the impugned orders cited above. They have also mentioned that the arrears of House Building Allowance interest were Eflifil deducted.ihxnn the applicant's gratuity bill along with encashment of 265 days of unutilized Earned leave anui 35 days tn? Half Pay Leave. On this basis, they assert that here can be In) claim ihnr arrears inn: pay anni allowances i i for the suspension period as now claimed. 1 1 E :5 . .1 '5! ".- =.
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9. During the final hearing, the applicant appeared in person and was heard as also learned Counsel for time respondent. The rmnfixmt has been considered vnifii reference 'to time provisions of the Fundamental Rules particularly FR~54B and relevant law and judicial precedents.
10. .Although the respondents have cited the proviso 5 ix: the FRr54B, reproduced above, this proviso required the Competent Authority to give notice to the Government servants of the quantum of payment proposed. and after considering the representation, ii? any received.iixnn him vdthin 60 days, a decision should be taken. Under proviso 7 ;n1 a case falling under subwrule (5), ,,,, when ,,, 11 0 1: be____ ri ed svi: r , vnless th e compe t en t authority specifically cfirects iflnfl: it shall be so treateci for run; speciffiemi_purpose: .Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant. Note:-- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of-- la) extraordinary leave in excess of three months in ___,.|-.
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(b) leave of any kind in excess of five years in the case of' _permanent or quasiepermanent Government servant."
11. In view of above, ii::ms clear that the matter of the suspension period of the Government servant has to be specifically examined and orders passed. within the limited options available and the delinquent employee has to file whatever representation he wishes within the scope cu? the provisions cu? the Enndamental Rules. On the aspect of deduction of HBA interest dues from the applicant's terminal benefits, this is rightfully owed by the applicant and remained unpaid. Tfiwa deduction follows inns acceptance by the: applicant. as <mistomarily' obtained. prior 'to grant of HBA and is duly reflected in the orders. Clearly, there was a requirement to send him some details that he could examine at his leisure and reply within 60 days but this was not done. However, the applicant appears ix; have obtained pension and all other benefits which will include the beneficial consideration of treating the suspension period as being on duty for the i_.
purpose cu? computing Xmas pension, gratuity' and
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8 OANO. 176/2017years after retirement, when he filed this applicationyimas plea inns certainly" belated znni more so am; the present rmnmmnz. Between the tmn> options possible, it is also clear that the Competent Authority had opted for the less painful alternative of regularizing the period of suspension rather ifinni treating it ens break in service: and. therefore, time applicant should. be happy with the option chosen for him although he was not asked for his opinion. Combined with the fact that the applicant has filed this application 3 years, 5 months, 25 days after the orders had been passed and after considering the above inentioned. aspects, this Tribunal sees In; case for intervention and the cur is accordingly dismissed without any order as to costs.
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