Central Administrative Tribunal - Delhi
Dr Naresh Sharma vs Health And Family Welfare on 20 October, 2023
1
Item No. 40 O.A. No. 799/2022
Court-IV
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 799/2022
This the 20th day of October, 2023
Hon'ble Dr. Chhabilendra Roul, Member (A)
Dr. Naresh Sharma
Post-DY. Drugs Controller (India)
S/o Late Sh. Hari Prakash Sharma
Age about 48 Years,
R/o E-83, First Floor,
Greater Kailash-I,
New Delhi-110048.
Mob. 9899078956.
Email: [email protected]
...Applicant
(Through Advocate: Ms. Rashmi Chopra)
Versus
1. Union of India
Ministry of Health & Family Welfare
Through It's Secretary Nirman Bhawan,
New Delhi-110001
Phone: 011-23061863 & 23063221
EMAIL: [email protected]
2. Drugs Controller General Of India (DCGI)
Govt. Of India
Ministry of Health & Family Welfare
Directorate General of Health Services
Central Drugs Standard Control Organization
FDA Bhawan, Kotla Road, New Delhi
Phone: 011-23236965,
Email: [email protected]
...Respondents
(Through Advocate: Mr. Sanjeev Yadav)
2
Item No. 40 O.A. No. 799/2022
Court-IV
ORDER (Oral)
By way of the present Original Application applicant seeks the following reliefs:-
"i) direct the Respondents to grant to the Applicant the benefit of subsistence allowance @[75% of pay after 90 days of suspension i.e. after 17.11.2019 till the suspension continues in pursuance of the various representations made by the Applicant alongwith consequential arrears with interests;
(ii) Pass an order of revocation of suspension and reinstate the Applicant in the department he was working i.e. Central Drugs Standard Central Organization (CDSCO), FDA Bhawan, Kotla Road, New Delhi;
(iii) accord all consequential benefits thereafter.
(iv) award cost of proceedings;
v) pass any other order as deem fit and proper in the facts and circumstances of the case and allow cost in favour of the Applicant."
2. The factual matrix of the case is that the present applicant qualified in the UPSC examination in 2006 joined Central Drugs Standard Control Organization as Drugs Inspector. Subsequently, he was promoted as Assistant Drug Controller and on 04.07.2018, he was promoted as Deputy Drug Controller. He was caught red handed by CBI on 16.08.2019 for accepting a bribe of Rs. 4,00,000/- from one private party. CBI registered an FIR No. RC-DAI-2019-A-0029 on 16.08.2019. He was arrested and after production before the judicial Court, he was granted bail on 25.09.2019. The Competent 3 Item No. 40 O.A. No. 799/2022 Court-IV Authority placed the applicant under deemed suspension vide order dated 25.09.2019. Prosecution sanction was granted vide order dated 02.03.2020. The CBI has already filed the charge sheet under Section 173 (3) Cr.PC against the applicant and the matter is pending in the Criminal Court. The suspension of the applicant was extended from 180 days each on 21.11.2019, 19.05.2020, 26.10.2020, 13.05.2021, 10.11.2021 and 23.05.2021 and 02.05.2022. During the period of suspension, the applicant was sanctioned Subsistence Allowance @ 50% of pay which is continuing till date. The applicant has represented the respondents to enhance his subsistence allowance to 75% of pay for the suspension period beyond 90 days in accordance with the CCS (CCA) Rules, 1965, but the same has not been done so far.
3. Notices were issued to the respondents who have filed their counter reply. The applicant has also filed rejoinder to the counter reply of the respondents.
4. Learned counsel for the applicant to support his claim states as follows:-
4.1. He places reliance on FR-53, which reads as under:-4 Item No. 40 O.A. No. 799/2022
Court-IV "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;
(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 per cent 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 per cent 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 form time to time on the basis of pay 5 Item No. 40 O.A. No. 799/2022 Court-IV of which the Government servant was in receipt on the date of suspension subject to the fulfilment 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."
4.2 The learned counsel for the applicant has cited various judgements/orders which held that prolonged period of suspension amounts to penal action.
(a) The Hon'ble Apex Court in the matter of Union of India & Ors Vs. Ashok Kumar Agrawal MANU/SC/1222/2013, held as under:-
"14. The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. v. Sardul Singh, (1970) 1 SCC 108; P.V. Srinivasa Sastry v. Comptroller & Auditor General of India, (1993) 1 SCC 419; Director General, ESI & Anr. v. T. Abdul Razak, AIR 1996 SC 2292; Kusheshwar Dubey v. M/s Bharat Cooking Coal Ltd. & Ors., AIR 1988 SC 2118; Delhi Cloth General Mills vs. 6 Item No. 40 O.A. No. 799/2022 Court-IV Kushan Bhan, AIR 1960 SC 806; U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. v. Sanjeev Rajan, (1993) Supp. (3) SCC 483; State of Rajasthan v. B.K. Meena & Ors., (1996) 6 SCC 417; Secretary to Govt., Prohibition and Excise Department v. L. Srinivasan, (1996) 3 SCC 157; and Allahabad Bank & Anr. v. Deepak Kumar Bhola, (1997) 4 SCC 1, wherein it has been observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial can not be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.
Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his 7 Item No. 40 O.A. No. 799/2022 Court-IV position. More so, at this stage, it is not desirable that the court may find out as which version is true when there are claims and counter claims on factual issues. The court cannot act as if it an appellate forum de hors the powers of judicial review."
(b) The Hon'ble High Court of Delhi in the matter of Surjit Singh Chowdhary And Ors. Vs. Municipal Corporation Delhi and Ors.
(Manu/DE/0307/200), has stated as under:-
"22. From the various judgments noted above, ......
i. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time.
ii. When the delinquent officer is kept under suspension in contemplation or pending departmental enquiry and the enquiry is delayed unduly by the department, the continuation of suspension becomes bad and can be set aside inasmuch as such a delay in enquiry shows that the suspension was not bonafide.
iii. Each case will have to be examined and the legality of the suspension would depend on the facts and circumstances of each case.
iv. The principle mentioned at serial no. i above, relating to delay in departmental enquiry cannot be ipso facto made applicable in the cases where suspension is resorted to pending investigation/trial of criminal offence.
v. When an officer is suspended pending investigation of a criminal case against him and the investigation is taking long time or after the completion of investigation no proceedings are initiated either in Court or in department and the suspension continues, continuation of such a suspension would be illegal.
vi. When criminal trial is pending in Court of law and the same is taking time to conclude, in such cases also, it would depend on the facts and 8 Item No. 40 O.A. No. 799/2022 Court-IV circumstances of each case as to whether the continuation of suspension should be treated as unjustified or not. Various factors which should be taken into consideration, while examining this question, would include the seriousness of charges levelled against the delinquent employee and where the charges are such that it would not be in the interest of department/institution to allow such an employee to remain in the seat i.e. where such charges are related to the performance of duties of the concerned official, or where charges are very serious and have direct bearing on the performance of duties by the concerned official, the suspension cannot be revoked only on the ground that the trial is prolonged. What is to be seen is as to whether the authority bonafide considered that it was not in public interest to revoke the suspension. If such a consideration is given by the competent authority and after due application of mind competent authority has held the view that it is not in public interest to revoke the suspension, Court will not interfere with such order of suspension. On the other hand where allegations in the charge-sheet filed in criminal Court are not very serious and the trial is unduly delayed, the continuation of their suspension may not be justified."
(c) The Hon'ble Apex Court in the matter of Ajay Kumar Choudhary Vs. Union of India (UOI) & Ors. MANU/SC/0161/2015, held as under:-
"14 We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the 9 Item No. 40 O.A. No. 799/2022 Court-IV interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."
(d) This Tribunal in the matter of Homi Rajvansh Vs. Union of India and Ors.
(Manu/CA/0683/2017) has held as under:-
"22. Such being the position, the continued suspension of the applicant is wholly unjustified and rather it is harassment to him. No public interest is being served. Applicant is being paid 75% salary without any work. The dictum of the judgment of the Apex Court in case of O. P. Gupta (supra) is clearly applicable. Although suspension is not perceived to be punishment, but a prolonged suspension assumes the trappings of punishment to a Government servant. He is not only deprived of the full salary but also has to suffer in the society, as prolonged suspension definitely casts stigma. The object of the initial suspension was to ensure timely investigation.
However, all subsequent reviews, as noticed by us hereinabove, have been ordered on the same ground of seriousness of the allegations. The review committees have acted mechanically without due application of mind. In view of the factual and legal analysis, we are of the considered opinion that the continued suspension of the applicant is totally illegal and unjustified."
(e) Hon'ble High Court of Allahabad in the matter of Anshu Bharti Vs. State of U.P. and Ors. (MANU/UP/1248/2008), has held as under:-
"The statutory power conferred upon the disciplinary authority to keep an employee under suspension during contemplated or pending disciplinary enquiry cannot thus be interpreted in a manner so as to confer an arbitrary, unguided 10 Item No. 40 O.A. No. 799/2022 Court-IV an absolute power to keep an employee under suspension without enquiry for unlimited period or by prolonging enquiry unreasonably, particularly when the delinquent employee is not responsible for such delay. Therefore, I am clearly of the opinion that a suspension, if prolonged unreasonably without holding any enquiry or by prolonging the enquiry itself, is penal in nature and cannot be sustained."
(f) Hon'ble High Court of Delhi in the matter of Mahabir Prasad Yadav Vs. Lakshmibai College (MANU/DE/1431/2020), has stated as under:-
"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 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 11 Item No. 40 O.A. No. 799/2022 Court-IV 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. To the same effect are the observations of the Rajasthan High Court in the case of Mohd. Laeeq Khan (supra), Paras 7 & 9 of which read as under:-
"7. Rule 53 of the RSR provides that a Government servant under suspension is entitled to subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn, if he had been leave on half pay and in addition dearness allowance based on such leave salary. Proviso thereto stipulates that where the suspension period exceeds six 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 six months in the manner indicated in three clauses thereunder. First clause of this proviso stipulates that the amount of subsistence allowance may be increased by a suitable amount, not exceeding to 50% of the subsistence allowance admissible during the period of the first six 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. Conversely, the second clause provides that the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of first six months if, in the opinion of the said authority, the period of suspension has been 12 Item No. 40 O.A. No. 799/2022 Court-IV prolonged due to reasons, to be recorded in writing, directly attributable to the Government servant.
xxx xxx xxx
9. In the present case, the petitioner has been placed under suspension on account of pending criminal trial against him and the respondents have neither asserted nor placed any material to show that the trial is getting delayed on account of lapse on the part of the petitioner. Although it may be true that suspension of the petitioner has been brought about nine years ago on the ground of alleged misconduct attributed to him but that cannot be taken as a reason owing to which suspension is required to be prolonged. Case of the Petitioner would thus fall in clause (1) of proviso to clause (a) of Rule 53 of the Rules."
5. Per contra, learned counsel for the respondents refers to the counter affidavit filed by the respondents. He reiterates the fact that the applicant was suspended on account of being caught red-handed by CBI, the competent authority has given sanction for this prosecution, chargesheet has been filed and the matter is under sub-judice, the Review Committee has duly considered his case each time his suspension has been extended by 180 days. In view of this, he states that the Competent Authority has not enhanced the Subsistence Allowance beyond 50% of the pay he was getting prior to his suspension.
13Item No. 40 O.A. No. 799/2022 Court-IV
6. I have perused the records of the case thoroughly and heard the arguments by the counsels. Here, there are few basic issues:-
(a) Whether the applicant's extension of suspension for the prolonged period bad in law and hence, the extension of suspension should be quashed and the applicant needs to be reinstated in service.
(b) Whether the applicant is entitled for enhanced subsistence allowance @ 75% of his pay drawn at the time of suspension during his period of extended suspension beyond 90 days.
6.1 Neither the Fundamental Rules nor the CCS (Service & Regulation) Rules, 1972 or DoP&T guidelines have prescribed any maximum period of suspension of a government employee. The Competent Authority has the prerogative of extending the suspension period of the applicant in lots 180 days at each time on the recommendation of the Review Committee. In the instant case, the Review Committee has, in each episode of consideration of extension, recommended extension of the suspension period of the applicant by 180 days. I do not final any infirmity in such recommendations nor in the orders by the respondents in extending suspension of 14 Item No. 40 O.A. No. 799/2022 Court-IV the applicant by another period of 180 days, at each time of the review. Judicial review is warranted in case there is arbitrariness, lack of competency, violation of statutory provision, allegations of malafide, etc. But, the judicial reviewing authorities like the Tribunal and Judicial Courts cannot function as Appellate Authority against the order of the Competent Administrative Authority. The possibility of another view, taking into prolonged period of suspension, hardship of the employee and nature of offence relating to pending criminal case, is not permissible under the grab of Judicial Review. 6.2 The judgments/orders cited by the learned counsel for the applicant do not unequivocally decide that the government employee is entitled to get his/her suspension revoked because prolonged period of suspension, which may amount to penal action against the employee as it casts aspersion/stigma on the government employee. All the judgments have given liberty to the competent authority to consider the case of the government employee taking into the facts and circumstances of the cases and humanitarian view regarding financial hardship of suspended employee. 15 Item No. 40 O.A. No. 799/2022 Court-IV 6.3 In view of this, I find no reason to interfere with order of the respondents in extending the suspension period or in other words, keeping the applicant under suspension on the recommendation of the Review Committee. However, when the respondents decide to revoke the suspension, they should pass reasoned and speaking order regarding the treatment of the period of suspension, after giving the applicant an opportunity of being heard.
6.4 This leaves the issue, whether the applicant is entitled to get enhanced Subsistence Allowance. Again, none of the judgments/orders cited by the learned counsel for the applicant unequivocally states that a government employee is entitled for enhanced subsistence allowance @ 75% of the pay drawn by him prior to his suspension, if his/her period of suspension is extended beyond the initial 90 days. Again, it is the discretion of the Competent Authority to take a call in this regard, keeping in view the facts and circumstances of the criminal case, stage of criminal proceedings, the role of the government employee in prolonging the criminal proceedings and of-course the financial hardship of the employee.
16Item No. 40 O.A. No. 799/2022 Court-IV 6.5 In the instant case, the applicant has, time and again, submitted representation to the respondents to enhance the subsistence allowance to 75% of pay, but the respondents have not responded to the representation of the applicant in any manner. Moreover, the Review Committees, while recommending extension of the suspension of the applicant, have not made any comment/recommendation regarding enhancement of his subsistence allowance.
7. In view of the above, the respondents are directed to consider the representation of the applicant for enhancement of subsistence allowance from the existing 50% of his pay at the time of initial suspension, within a period of four weeks from the date of receipt of certified copy of this order.
8. The present O.A. is disposed of in above terms.
9. No order as to costs.
(Chhabilendra Roul) Member (A) /SG/