Central Administrative Tribunal - Mumbai
O.A.581/2 vs Union Of India on 7 December, 2012
1 O.A.581/2011 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI.
O.A.No.581/2011.
Date of decision: December 7, 2012. Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A).
Shri Ramesh Premji Padaya, Lower Division Clerk, National Research Institute of Basic, Ayurvedic Sciences, Kothrud, Pune 411 038.
R/at: a-7, Dinanath Soc., RTO Road, Andheri (W), Mumbai 400 053. .. Applicant.
( By Advocate Smt.S.K. Gujaran ).
Versus
1. Union of India, throughDirector General, Ministry of Health & Family Welfare, Central Council for Research In Ayurveda and Siddha, Jawaharlal Nehru BhartiyaChikitsa, Avum Homeopathy AnushandhanBhavan No.61/65, Institutional Area, Opp. D Block, Janakpuri, New Delhi 110 058.
2. (Regional Office atthe Director, R.R.A. Podar Central Research Institute (Ayurveda), Dr.A.B. Road, Worli, Mumbai 400 018. ..Respondents.
( By Advocate Shri Jyotirmay Khosla ).
Order (Oral) Per : R.C. Joshi, Member (A).
In this Original Application, the Applicant has impugned the order dated 15.11.2010 regarding 2 O.A.581/2011 regularization of the suspension period of the Applicant under F.R.54.
2. Briefly, the Applicant joined the services of the Respondents on 01.07.1991. On or about 31.10.2008 the Applicant while on duty had an altercation with another employee and they assaulted each other. Due to the said misconduct, the Applicant was placed under suspension vide order dated 31.10.2008. The Applicant preferred a representation before the Appellate Authority for revoking of the suspension which was rejected vide order dated 29.12.2008. Thereafter, the Applicant preferred an appeal before Respondent No.2 for revocation of the suspension and a Review Committee was constituted to consider the case. The suspension of the Applicant was revoked based on the recommendations made by the Review Committee and he was transferred to Pune vide order dated 29.01.2009. As a consequence of the Applicant having submitted an unconditional apology with further assurance to improve his conduct while discharging his official duties, the Appellate Authority (Respondent-2) took a lenient view and the disciplinary proceedings against the Applicant were dropped (Annexure A-7) and vide dated 15.09.2009 (Annexure R-5) a warning was issued to the Applicant to be more careful in future and not to repeat the said misconduct, failing which the cases 3 O.A.581/2011 will be re-opened and appropriate disciplinary action would be initiated. The Applicant thereafter submitted an application dated 08.06.2010 to Respondent No.2 for regularization of the suspension period. After due consideration, the said period of suspension was treated as non-duty (dated 15.07.2010) (Annexure A-7) which is now being impugned in the present Original Application.
3. The Applicant has sought the following reliefs:
a) That this Honourable Tribunal be graciously pleased to direct the respondent to regularize the Suspension period of the applicant under F.R.54-B, between 31st October, 2008 to 29th January, 2009 as period spent on duty for all purposes.
b) That this Honourable Tribunal be graciously pleased to direct the respondent to grant the applicant promotion due to him.
c) That this Honourable Tribunal be graciously pleased to direct the respondent to restore the posting of the applicant at Mumbai office.
d) That such other and further order or orders be passed in the facts and circumstances of the case may require.
e) That cost of the application be provided for.
4. We have gone through the pleadings, carefully perused the case papers and have extensively heard the learned counsel for the rival sides.
5. A careful consideration of the case papers 4 O.A.581/2011 reveals that the Applicant, working with the Respondents since 01.07.1991, was involved in a case of assault with a colleague within the Institute premises and was placed under suspension with effect from 31.10.2008. A Review Committee was constituted to review the case and the case was reviewed on 27.01.2009. As per the recommendations contained in the Report of the Review Committee, the Applicant was reinstated and transferred to National Research Institute of Basic Ayurvedic Sciences (NRIBAS, Pune) vide order dated 29.01.2009. The Applicant thereafter tendered an unconditional apology for the misconduct committed by him with further assurance to improve his conduct in discharging his assigned official duties forwarded vide dated 22.06.2009 by NRIBAS, Pune. A warning was thereafter issued to him by taking a lenient view based on the apology tendered and forwarded by NRIBAS, Pune vide dated 22.06.2009. The Applicant was directed to be more careful in future and not to repeat any misconduct.
6. The Applicant seeks regularisation of the period of suspension which has been treated as 'non-duty'. We have carefully perused the case papers and it is observed that even after the communication of 'Censure','Warning' etc. in the past, the Applicant was again 'warned' for misconduct vide dated 29.12.2010 (Annex.-R-12).
5 O.A.581/2011It is the Respondents case that the Applicant has persistently been committing misconduct and, therefore, the action taken in treating the period of suspension as 'non-duty' has been initiated after following the provisions contained in F.R.54-B.
7. It is important to observe here that in terms of Government instructions issued by Department of Personnel & Training vide Memo dated 03.12.1985, the suspension should be resorted to only in those cases where a major penalty is likely to be imposed on conclusion of the proceedings and not a minor penalty. However, Rule 54-B of the Fundamental Rules deals with treatment of the period of suspension after reinstatement of a Government employee and the same is reproduced herein below for convenience: F.R.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 allowances 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 a period spent on duty. ...............
6 O.A.581/2011(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.
(5) In cases other than those falling under sub-rules (2) and (3) the Government servant shall, subject to the provisions of sub-rules (8) 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 the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
(6) Where suspension is revoked pending 7 O.A.581/2011 finalization of the disciplinary or the Court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be. (7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified 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.
8. A reading of the above provision contained in FR.54-B reveals that the Competent Authority is not bound to treat the period of suspension as 'on duty'.
Further, a perusal of the Government of India's O.M. dated 25.05.1962 and 09.08.1962 read with provisions of FR 54, 54-A and 54-B provides that the Competent Authority has the discretion to pay the proportionate pay and allowances and treat the period as duty for any specified purposes or only to pay the proportionate pay and allowances. It has further provided that the Competent Authority has no discretion to pay full pay and allowances when the period is treated as 'non-duty'. The said provision is reproduced herein below for convenience:
8 O.A.581/2011(3) Treatment of period of absence and payment thereof.-The Government of India have conveyed the following clarifications in regard to certain points which have been raised in connection with the application of FRs 54, 54-A and 54-B:
(1) The decision of the competent authority under Frs 54, 54-A and 54-B is in respect of two separate and independent matters, viz., (a) pay and allowances for the period of absence, and (b) whether or not the period of absence should be treated as duty.
It is not necessary that the decision on
(a) above should depend upon the decision on (b) above.
The competent authority has the discretion to pay the proportionate pay and allowances and treat the period as duty for any specified purpose(s) or only to pay the proportionate pay and allowances. It has no discretion to pay full pay and allowances when the period is treated as non-duty.
If no order is passed directing that the period of absence be treated as duty for any specified purpose, the period of absence should be treated as 'non-duty'. In such event, the past service (i.e.,) service rendered before dismissal, removal, compulsory retirement or suspension will not be forfeited.
(2) As Fundamental Rule 54 is absolute, the law of limitation restricting payment of arrears of subsistence allowance only for a period of three years in certain circumstances need not be invoked at the time of paying the arrears of pay and allowances for the period from the date of dismissal / removal / compulsory retirement / suspension to the date of reinstatement in respect of all cases where the pay and allowances are regulated on reinstatement in accordance with the provisions contained in FR 54, 54-A and 9 O.A.581/2011 FR 54-B.
9. After careful consideration of the case papers it is seen that the Applicant was placed under suspension and was thereafter reinstated in service considering the recommendations contained in the report of the Review Committee. Subsequently, the Respondents had treated the period of suspension as 'not on duty' against which the Applicant had preferred this O.A. It is noted that the Applicant had admitted his guilt by giving an unconditional apology and had also given an assurance that he would improve his conduct in discharging his assigned official duties. It is, however, seen from the Annexure R-12 dated 29.12.2010 that the Applicant was further warned to be more careful as he had not shown any improvement in routine performance and personal attitude vide Memo dated 29.12.2010 (Ann. R-12). It is also noted that the Applicant was earlier issued a Memo of Censure dated 01.01.2002 (Ann.R-2) in view of the misconduct committed by him.
10. In this case, the Applicant had himself admitted his guilt and had given an unconditional apology. The Respondents reinstated him posting him to NRIBAS, Pune but inspite of the assrurance given, the Applicant did not improve his behaviour which is evident from the warning communicated to him vide 10 O.A.581/2011 dated 29.12.2010. The Applicant did not challenge the warning communicated to him and, therefore, we do not find any justification to consider the relief sought by the Applicant in the present O.A.
11. In view of the above, therefore, we would not like to interfere with the impugned order passed vide dated 15.11.2010.
12. The Original Application is dismissed. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J).
H.