Central Administrative Tribunal - Delhi
Devi Krishan Sharma vs Union Of India on 11 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 3684/2012 New Delhi this the 11th day of September, 2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) Devi Krishan Sharma Ex-Junior Engineer (Civil), C.P.W.D. R/o Flat No.272-B, Pocket-C, Mayur Vihar, Phase-II, New Delhi-110091. Applicant Applicant in person. Versus 1. Union of India Through Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi-110011. 2. Director General (Works) C.P.W.D., A-Wing, Nirman Bhawan, New Delhi-110011. 3. Chief Engineer, NDZ-III, C.P.W.D., Sewa Bhawan, R.K. Puram, New Delhi-110066. 4. Superintending Engineer, DCC-VII, CPWD, Block No.IV, Level-IV, East Block, R.K. Puram, New Delhi-110066. .Respondents By Advocate: Shri Sameer Aggarwal. ORDER (ORAL)
The relief sought by the Applicant against the Respondents in this Original Application is recalculation of the subsistence allowance payable to him during the period of his suspension from 21.4.2005 to 13.4.2006.
2. The brief facts of the case are that the Applicant was under suspension for the aforesaid period, i.e. 21.4.2005 to 13.4.2006 and thereafter he was facing departmental enquiry proceedings. Ultimately, he was removed from service on 15.3.2011. Prior to his suspension, he drew his annual increment on 01.08.2004 and in the normal course, the next increment was due for him on 01.08.2005. Since the Applicant was under suspension during the aforesaid period, he was not granted the said increment. By the time, the Applicant was reinstated in service w.e.f. 13.4.2006, on the recommendations of the 6th Pay Commission, the system of uniformity in granting annual increments was introduced w.e.f. 1.12006. Therefore, he became entitled to get his next increment w.e.f. 1.7.2006 but the Respondents did not give it. He was given the next increment only with effect from 01.07.2007. Further increments have also been granted to him w.e.f. 01.7.2008, 01.7.2009 and 01.07.2010. Thereafter, he remained under deemed suspension w.ef. 12.08.2010 and as stated earlier, he was removed from service on 15.03.2011. As a result, the same amount of subsistence allowance was continued to be paid to him throughout the period of his suspension. He has, therefore, made a representation on 21.08.2006 followed by reminders dated 30.12.2011 and 23.01.2012. However, vide their letter dated 03.02.2012, the Respondents informed him as under:-
You were awarded major penalty for criminal conduct. As per record of the office, you were paid subsistence allowance during suspension period as per provision contained in Rule 53(1) of FR which was extended by fifty percent. As such you shall not be paid any arrear of any pay and allowances for suspension period since suspension was resulted in major penalty.
3. The Applicant again made a representation dated 24.2.2012 reiterating his earlier requests and refuting the contentions of the Respondents but they decided the said representation vide its order dated 12.6.2012 once again restricting his pay and allowances paid to him as subsistence allowance during his aforesaid suspension period. He had, therefore, earlier filed OA No.2874/2012 before this Tribunal challenging the aforesaid decision of the Respondents and the same was disposed of on 31.08.2012 (Annexure A-16) directing them to consider his aforesaid representation and to pass appropriate orders within 2 months. It is in pursuance to the aforesaid order, the Respondents have now passed the impugned order dated 23.10.2012 stating that during the period the Applicant remained under suspension, his pay and allowances was restricted to the pay and allowances equal to the subsistence allowance paid to him as admissible under FR 53 and since the period of his suspension was declared as non-duty by the disciplinary authority, his increments due to him on 01.08.2005 was not granted to him due to non-completion of 12 months of service. However, when he completed 12 months of service w.e.f. 23.7.2006 to 23.7.2007, he was granted the next increment w.e.f. 01.07.2007.
4. I have heard the applicant who argued in person and the learned counsel for the Respondents Shri Sameer Aggarwal. In the judgment in Balwant Rai Ratilal Patel vs. State of Maharashtra, AIR 1968 SC 800 the Apex Court considered the general principles considering suspension and held as under:
On general principles therefore the Government, like any other employer, would have a right to suspend a public Servant in one or two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. The question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection.
5. Later, the Allahabad High Court in Mritunjai Singh Vs. State of U.P. and others, AIR 1971 Allahabad 214 (V.58 C 47), considered the question whether suspended employee is eligible to earn increment during the period of suspension and held as under:
14. We now come to the last point, namely, whether the petitioner should be allowed to earn his increment due during the suspension. In that connection again my attention was drawn to the same authority of the Supreme Court which has already been referred to as the first authority, namely, that relating to the Management Hotel Imperial. It has been laid down therein that the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. Emphasis is laid down on the words master is not bound to pay on behalf of the State and it is said that if the master is not bound to pay during the suspension how can the servant claim that he is entitled t earn his increment during the period of suspension. The matter, however, has been clarified in the later authority of Balvantrai Ratilal, AIR 1968 SC 800 where it is indicated that even if there is no express term of suspension in the contract of employment, the employer has power to suspend his employee and it amounts to the issuing of an order to the employee which, because such contract is subsisting, the employee must obey. This shows that the contract of service subsists during the period of suspension and if the contract subsists, even though there is suspension, the employee remains in service and if he remains in service, he is entitled to all benefits of service even though he is not expected to work during the period of suspension. Rule 24 of the Financial Hand Book Volume II issued under the authority of the Government of the Uttar Pradesh in Chapter IV Part II provides that an increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a government servant by the Government or by any authority to whom the Government may delegate this power under rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments. As the contract of the service of the petitioner continued even though he was under suspension, the increment should be allowed ordinarily to be drawn unless it is withheld in the manner provided under Rule 25. As it is not the case of the opposite parties that it has been so withheld, the petitioner is entitled to the increments during the pendency of his suspension and the subsistence allowance shall be calculated accordingly, it being 1/3rd of the pay plus dearness allowance.(emphasis supplied)
6. Again relying upon the judgment in Balwant Rai Ratilal Patels case (supra), the Hyderabad Bench of this Tribunal in OA-1056/2011 Saranjit Singh vs. Director, Employment directed the respondents therein to grant increments to the applicant therein during the period of suspension. The relevant part of the said order reads as under:
4. We have heard the learned counsel for the parties. We agree with the counsel for applicant that withholding of increment is a minor penalty and in the absence of such an order by the competent authority, the increments which are payable to an employee on year to year basis cannot be withheld. We do not find any support for the argument of the respondents that the releasing of increments under FR 24 is subject to the provisions contained in FRs 26, 53 & 54 as this Tribunal has already taken a view in this matter in OA-1056/2008 (supra) and the said view has already been upheld by the High Court in its judgment dated 15.2.2010 in WP (C) No.9042/2009 (supra). We are, therefore, of the considered view that applicant is entitled to the reliefs sought by him. Accordingly, we allow this OA and direct the respondents to release all the increments which have fallen due during the period of his suspension as provided under FR 54 for the purpose of computing his subsistence allowance. The respondents shall work out the arrears thus payable to the applicant in terms of the aforesaid directions and the same shall be paid to him within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
7. Hence, there cannot be any valid dispute that a suspended employee is entitled to get the increments during the period of his suspension. Admittedly, the Applicant remained under suspension during the period from 21.4.2005 to 13.4.2006 and the last increment he drew before his suspension period was w.e.f. 01.08.2004. Had he not been suspended, in the normal course, the respondents themselves would have granted him the next increment on 01.08.2005. But in view of the aforesaid settled position in the matter, just because he was under suspension on that date, the Respondents could not have denied him the increment. Now the question is with regard to his next increment in the year 2006. Admittedly, with the acceptance of the recommendations of the 6th Pay Commission, the system of granting annual increments to Government employees has got changed. According to the new system, the employees are granted increments either w.e.f. 1st January or w.e.f. 1st July of every year depending upon the dates on which he/she drew the last increment. For those who are entitled for increment in any of the first six months of the year, the increments are given from the 1st January of that year itself. Similarly, in the case of those who were entitled for increment in any months in second half of the year, increments are granted from 1st July, of that year. As a result, since the normal date of the increment of the Applicant falls in the 2nd half of the year (Ist August), the Applicant again became entitled for his next increment from 01.07.2006. Therefore, there was no question of completion of duty for 12 months for getting the increment w.e.f. 01.07.2006. Again, there arise no question as to whether the suspension period has been counted for the purpose of duty or not for payment of subsistence allowance which is governed by a different set of rules.
8. I, therefore, allow this OA and direct the Respondents to grant him the increments during the suspension period with effect from 01.08.2005 and again with effect from 01.07.2006 after the suspension was revoked and to re-calculate his subsistence allowance and his pay and allowances till he was removed from service on 15.3.2011 and to pay the difference within a period of 2 months from the date of receipt of a copy of this order.
9. There shall be no order as to costs.
(G. GEROGE PARACKEN) MEMBER (J) Rakesh