Central Administrative Tribunal - Delhi
Shri Ravinder Kumar vs Union Of India Through on 30 August, 2013
Central Administrative Tribunal Principal Bench OA No. 2163/2012 Reserved on: 15.05.2013 Pronounced on:30.08.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member(A) Shri Ravinder Kumar R/o Bungalow No.15, Railway Officers Enclave, Sardar Patel Marg, New Delhi 110 021. Applicant (Applicant in person) Versus 1. Union of India through Home Secretary, Government of India, North Block, Central Secretariat, New Delhi 110 001. 2. State of Himachal Pradesh through Principal Secretary (Home) to the Government of Himachal Pradesh, Shimla 171 002. Respondents (By Advocate: Sh. M.K. Bhardwaj for R-1 and Sh. Aditya Dhawan for R-2) O R D E R By Dr. Birendra Kumar Sinha, Member (A):
This is a much litigated case, which is on its second round before this Tribunal. The applicant is an IPS Officer of 1977 batch allocated to Himachal Pradesh cadre. The applicant assails the following orders, vide the instant Original Application:-
The order dated 26.05.2008 placing the applicant under deemed suspension from the date of his compulsory retirement from service on 05.03.2004 till the date of his reinstatement in service on 26.05.2008 in terms of Rule 6(3) of the All India Service (Discipline & Appeal) Rules, 1969 [hereinafter referred to as AIS(D&A) Rules, 1969] leaving the question of subsistence allowance to be decided on conclusion of the departmental proceedings (Annexure A-1);
Communication dated 21.01.2011 of respondent no.2 informing that the departmental proceedings have since been concluded against the applicant with imposition of penalty of compulsory retirement vide order dated 13.08.2009 and further that the applicant would be paid subsistence allowance in terms of Rule 4 of AIS(D&A) Rules, 1969 @ 50% from 05.03.2004 to 04.062004 for the first three months and @ 75% for the remaining period from 05.06.2004 to 25.05.2008 with a request to furnish a copy of the order to be issued in this regard (Annexure A-2);
Order dated 21.02.2011 (Annexure A-3) with reference to Annexure A-2 giving effect to the revised scale of subsistence allowance as suggested by the respondent no.2 in Annexure A-2;
Impugned order dated 26.04.2011 (Annexure A-4) informing that since the order of compulsory retirement had been set aside by the Tribunal on a technical ground and not on merit, the period of his deemed suspension from 05.03.2004 to 25.05.2008 could not be regularized;
Order dated 29.06.2011 (Annexure A-5) declaring that the deemed suspension period of the applicant from 05.03.2004 to 25.05.2008 would not count for any service benefits i.e. increments and for other purposes;
2. The applicant has sought the following items of relief(s):-
(1) Respondent no.1 may be directed to issue corrigendum to change the dates of deemed suspension period (i.e. from 05.03.2004 to 25.05.2008) to from 22.03.2004 to 20.12.2007 in the impugned order dated 26.05.2008 (Annexure A-1) and in the impugned letters dated 21.01.2011 (Annexure A-2) and dated 26.04.2011 (Annexure A-4); and, respondent no.2 may be directed to issue corrigendum to change the same dates in the impugned orders dated 21.02.2011 (Annexure A-3) and dated 29.06.2011 (Annexure A-5);
(2) Respondent no.1 may be directed to issue a corrigendum to enhance the subsistence allowance admissible w.e.f. 01.01.2006 due to the revised scale of pay in the impugned letter dated 21.01.2011 (Annexure A-2); and respondent no.2 may be directed to issue a similar corrigendum to the impugned order dated 21.02.2011 (Annexure A-3);
(3) Respondent no.1 may also be directed to pay penal interest @ 18% per annum on the amount of subsistence allowance that was due monthly w.e.f. 22.04.2004 to 25.05.2008 upto the date of its release vide impugned letter dated 21.01.2011 to the applicant; and respondent no.2 may be directed to pay penal interest @ 18% per annum on the amount of subsistence allowance that was due as on 01.02.2011 upto the dates of its payments (i.e. interest on Rs. 93,574/- upto 01.07.2011 and interest on Rs.6,83,148/- upto 28.05.2012);
(4) Quash impugned letter dated 26.04.2011 (Annexure A-4) issued by respondent no.1 as well as impugned order dated 29.06.2011 (Annexure A-5) issued by respondent no.2; and (5) Respondent no.1 may in addition be directed to pass orders forthwith for treating the period from 05.03.2004 utp 25.05.2008 as on duty for all purposes and to pay the full pay and allowances to the applicant for the whole of this period and to pay costs to him.
3. The case of the applicant, briefly stated, is that he was compulsorily retired from service vide order dated 05.03.2004 of the President of India. The Revision filed by the applicant under Rule 24 of the AIS (D&A) Rules, 1969 was also rejected by the order dated 12.07.2005. The applicant thereafter moved the Principal Bench of this Tribunal vide OA No. 2307/2005 which quashed the order of compulsory retirement vide its order dated 20.12.2007. The applicant thereupon sent a communication to the Director General of Police dated 29.12.2007 enclosing therewith a copy of the Tribunals order in OA No. 2307/2005 requesting that the same be treated as his formal joining report.
4. The applicant was reinstated in Service by respondent no.1 w.e.f. 26.05.2008 and was deemed to have been placed under suspension w.e.f. 05.03.2004 till the date of his reinstatement (Annexure A-1). This order further stated that the grant of subsistence allowance during the period would be decided on conclusion of the departmental proceedings against the applicant. The applicant filed a representation against this order (Annexure A-8) requesting for revision as such a step has not been provided under AIS (D&A) Rules, 1969 and the Fundamental Rules are not applicable to a Member of All India Police Services as held by the Honble Supreme Court in the matter of D.D. Suri versus Union of India and Another [1979 (3) SLR 689]. The applicant submitted that orders were required to be passed under Rule 5A (3) of the AIS (D&A) Rules, 1969 simultaneously with the order dated 26/27.03.2008 and has also relied upon the decision of the Honble Apex Court in the matter of Devendra Pratap Narain Rai Sharma versus State of U.P. and Others [1962 AIR (SC) 1334] and of Honble High Court of Punjab & Haryana in the matter of Sukhdev Prasad, I.A.S. versus State of Haryana [1982(1) SLR 34]. The applicant was informed that his compulsory retirement had been set aside by the Principal Bench of this Tribunal vide order dated 20.12.2007 in OA No.2207/2005 on technical grounds for non-supply of a copy of the CVC advice and not on the merit of the case. Hence, the provisions of Rule 5A (3) of AIS (D&A) Rules, 1969 were not applicable to the facts of the case as the departmental proceedings were continued and the payment of subsistence allowance would only be decided on conclusion of the departmental proceedings as communicated in the order dated 26.05.2008. The applicant was compulsorily retired vide order dated 13.08.2009 (Annexure A-10) with effect from the date of issue of the order. The respondent no.1, thereafter, issued an order dated 21.01.2011 directing that the subsistence allowance would be paid to the applicant for the first three months @ 50% of the last pay drawn and for the remaining period @ 75% of the last pay drawn. The respondent no.2 issued another order dated 21.02.2011 which has been impugned in this case (Annexure A-3) sanctioning subsistence allowance to the applicant during the period of deemed suspension. The applicant submitted a representation on 09.05.2011 seeking, inter alia, payment of subsistence allowance in the revised pay scale w.e.f. 01.01.2006 as a consequence of implementation of the 6th CPC recommendations. The Director General of Police thereupon requested the Principal Secretary (Home) seeking sanction for Rs.6,77,671/- to the applicant after having made recoveries towards pay w.e.f. 05.03.2004 to 21.03.2004; pension w.e.f. 22.03.2004 to 25.05.2009; CGIS and the amount already paid in cash to him. The applicant further submitted that on 01.07.2011, an amount of Rs.93,574/- was credited to his S/B account by the DGP, Himachal Pradesh as payment of subsistence allowance from 05.03.2004 to 25.06.2008. Aggrieved with this decision, the applicant submitted further representation dated 27.12.2011 stating, inter alia, that he had been paid salary only upto 27.05.2008 and was now being allowed subsistence allowance upto 25.05.2008 @ 75% of the last pay drawn. There is no order covering 26.05.2008 which needs to be immediately issued.
5. The second point that he has pressed is that he had been paid salary upto 21.03.2004 and he had received the order of his compulsory retirement dated 05.03.2004 only on 22.03.2004. As per the orders of the Principal Bench of this Tribunal dated 14.07.2011 passed in OA No. 80/2011, the suspension period from 05.03.2004 to 22.03.2004 has to be treated as the one spent on duty and the applicant can only be deemed to be under suspension w.e.f. 22.03.2004. This calls for revision in the order dated 21.01.2011 and the order dated 21.02.2011 issued by the respondent no.2. In the third place, the applicant has prayed for payment of subsistence allowance at the revised rates consequent to implementation of the 6th CPC report from 01.01.2006 to 25.05.2008. During the pendency of the Application, an amount of Rs.6,83,148/- was credited to the S/B account of the applicant on 28.05.2012 by way of subsistence allowance. The applicant has relied upon the decision of the Full Bench of this Tribunal in the matter of J.S. Kharat versus Union of India & Others [2002-03 (CAT) FB 169].
6. The respondent no.1 has filed a counter affidavit vehemently opposing the Original Application stating that admittedly the disciplinary proceedings were initiated against the applicant on 28.03.1995 under Rule 8 of the AIS (D&A) Rules, 1969 in respect of eight charges. The Inquiry Officer held all the charges proved and the applicant was awarded the penalty of compulsory retirement from service following the due procedure prescribed. The matter was also referred to the Central Vigilance Commission which also recommended the compulsory retirement and further to the Union Public Service Commission which endorsed the same. The order of compulsory retirement of the applicant was finally issued on 05.03.2004. Though the order of compulsory retirement of the applicant was set aside by the Tribunal vide its order dated 20.12.2007, the respondents were given liberty to start the proceeding afresh from the stage of supplying the CVC advice to the applicant. The order of the Principal Bench of this Tribunal setting aside the order of compulsory retirement of the applicant was received on 21.12.2007 and the order of reinstatement was passed on 26.05.2008.
7. The learned counsel for the respondents submitted that the Tribunal set aside the order of the compulsory retirement of the applicant on a mere technical ground and the very body of the order states that the issue of consequential benefits would be decided once the fresh departmental proceedings initiated against the applicant were concluded. On conclusion of the fresh departmental proceedings, it was decided to retire the applicant compulsorily once again after having taken the advice of UPSC on the quantum of punishment vide order dated 13.08.2009. The learned counsel for the respondent no.1 further submitted that since the Tribunals order clearly mentioned that the payment of consequential benefits would be subject to outcome of the fresh departmental proceedings, the effect of the deemed suspension has been correctly given from 22.03.2004.
8. As regards the second argument, the learned counsel for the respondent no.1 has referred to Note-I of the Indian Police Service (Pay) Rules, 2007 which clearly mentions that a member of the Service under suspension shall continue to draw subsistence allowance on the existing scale of pay and that his pay in the revised structure will be subject to final outcome of the pending disciplinary proceedings. As the applicant was proceeded against after the rectification of the defect for a second time and has been punished once again with the compulsory retirement in view of this clear stipulation that the question of revised scale being granted does not arise.
9. The learned counsel for the respondent no.1 has simply opposed the claim of the applicant for payment of interest stating that the stand of the applicant has not been vindicated and in the subsequent departmental proceedings also he stands punished likewise, he cannot be granted the arrears of pay. The learned counsel for the respondent no.1 vehemently argued that the applicant has been proceeded twice against and after having been held guilty ordered to be compulsorily retired. He further submits that in view of the direction of the Principal Bench of the Tribunal contained in its order dated 20.12.2007 passed in OA No. 2207/2005 and the decision in subsequent departmental proceedings, present OA deserves to be dismissed.
10. The learned counsel for the respondent no.2 simply adopted the arguments of respondent no.1. However, there are diversions at places in their respective pleadings as to be pointed out in this order hence.
11. We have heard the applicant appearing in person at length and have also gone through the pleadings and such documents that have been placed on record. We have also listened carefully to the submissions made by the applicant as well as the learned counsels for the respondents and on the basis thereof, we find that the prayers made by the applicant in the relief column are also the issues to be decided as follows:-
(1) Whether the date of deemed suspension period (i.e. from 05.03.2004 to 25.05.2008) needs to be changed from 22.03.2004 to 20.12.2007 as contained in the impugned order?
(2) Whether the subsistence allowance for the deemed period of suspension shall be applicable to the applicant in the revised scale of pay w.e.f. 01.01.2006?
(3) Whether a penal interest @ 18% per annum is payable w.e.f. 22.04.2004 to 25.05.2008 on the amount of subsistence allowance as on 01.02.2011 to the date of its payment upto 28.05.2012;
(4) Whether there is no case for quashing the impugned letter dated 26.04.2011 and the impugned order dated 29.06.2011;
(5) Whether the period from 05.03.2004 up to 25.05.2008 should be treated as the one spent on duty and payment of full pay and allowances should be made along with interest @ 18% per annum to the applicant;
12. In so far as the first issue is concerned, the applicant has sought release of pay for 26.05.2008 and would like a corrigendum to be issued this effect. Here counter affidavit filed on behalf of the respondent no.2 that being the State Government of Himachal Pradesh states that the MHA New Delhi placed the applicant under deemed suspension vide its letter dated 26/27-5-2008 with effect from 5.3.2004 till the date of his reinstatement i.e. 26.5.2008. The applicant had planned on 12.6.2008 and the period from 27.05.2008 to 11.08.2008 was regularized by granting HPL in his favour. However, vide order dated 13.9.2011 passed in OA No.625/2011 by CAT, Principal Bench, the period from 27.05.2008 to 05.06.2008 had been treated as on duty for the limited purpose of payment of salary and allowances and the period from 06.06.2008 to 11.06.2008 to be treated as he was transferred from Bareilly to Shimla on 5.6.2008 and joining time as an admissible under rules subject to maximum period up to 12.6.2008 was allowed to him by the State Government. Further, the MHA vide its letter dated with 21.1.2011 had allowed subsistence allowance for the period from 5.3.2004 to 25.5.2004 to the applicant and an order to this effect was also issued by the State government. The counter affidavit filed on behalf of the state government clearly concedes that a one days salary for 26.5.2008 is required to be paid favour of the applicant. Taking this affidavit filed on behalf of the State Government into account there is no ambiguity left on the issue. Therefore, the issue is decided in favour of the applicant.
13. In so far as second issue is concerned, the counter affidavit filed on behalf of the State government states that it is true that the order for compulsory retirement dated 5.3.2004 was received by the applicant on 22.3.2004, meaning thereby that he had been paid salary up to 21.3. T004. The counter affidavit on behalf of the State Government goes ahead to submit that the applicant had been demanding that his deemed suspension may be treated from 22.3. 2004 to 26.5.2008 instead of 5.3.2004 on the analogy of the Tribunals order dated 14.7.2011 passed in OA No.80/2011. He was compulsorily retired vide order dated 13.8.2009 was received by him on 22.8.2009. The applicant was paid salary up to 21.8.2009 which was further given up to 22.8.2009 on the directions of the Tribunal. The affidavit filed by the State government leaves the issue open to the government of India to take appropriate decision in this regard. The government of India, in its counter affidavit has remained silent on this issue. Otherwise also, it stands to reason that the deemed suspension could only take place from the date that the order was served upon the delinquent officer. Here one has to draw a distinction between suspension and deemed suspension. Suspension takes place during the service period of an employee whereby his right to attend to his duties is put under abeyance, he undergoes the gamut of disciplinary action. It is in recognition of the reduced responsibility of the employee that the salary payable to the employee is reduced to a level of subsistence. On the other hand in case of deemed suspension the services of the employee already stand terminated and he is brought back into service by means of courts order.
Rule 3 of the AIS (D&A) Rules, 1969 provides 3. Suspension.
(1) If, having regard to the circumstances in any case and, where articles of charge have been drawn up, the nature of the charges, Government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending that Government may-
(a) if the member of the Service serving under that Government, pass an order placing him under suspension, or
(b) if the member of the service is serving under another Government, request that Government to place him under suspension, pending the conclusion of the disciplinary proceedings and the passing of the final order in the case. It is to be drawn from the above that the suspension of an all India Officer is resorted to when it is satisfied or desirable to place the concerned officer under suspension. On the other hand, the deemed suspension is resorted to under three of the following conditions:-
(4) A member of Service shall be deemed to have been placed under suspension by the Government concerned with effect from the date of conviction of, in the event of conviction for a criminal offence, he is not forthwith dismissed or removed or compulsorily retired on such conviction provided that the conviction carries a sentence of imprisonment exceeding forty-eight hours.
Explanation.
The period of forty-eight hours referred to in sub-rule (4) shall be commuted from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
(5) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the Service under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(6) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the Service is set aside or declared or rendered void in consequence of or by a decision of a Court of Law, and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the member of the Service shall be deemed to have been placed under suspension by the Central Government from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of this case. In sub-clauses (4) & (5), a deemed suspension is to take effect from the original order of dismissal, removal or compulsory retirement. It is quite evident that here the sub-clauses 4 & 5 do not speak of the date of receipt of the order but it takes effect from the date of the original order. It is an admitted position that the order of compulsory retirement was dated 05.03.2004 though it was received by the applicant on 22.03.2004. In terms of clauses (5) & (6) of the AIS (D&A) Rules, 1969, that we have seen above, it emerges clearly that irrespective of the date on which the original order was received, the deemed suspension was to take effect from the date of original order of dismissal/removal or compulsory retirement. In the facts and circumstances of the issue, it is clearly decided against the applicant.
14. In so far as the third issue relating to payment of the subsistence allowance for the period from 01.01.2006 to 25.05.2008 on revised pay and allowances @ 75% of the pay is concerned, the applicant has relied upon the decision of the Full Bench of this Tribunal in the case of J.S. Kharat versus Union of India & Others (supra). This case is concerned with the Railway Servants (Revised Pay) Rules, 1986. The applicant was a Railway Driver, who was placed under suspension on 25.12.1985 following a major accident on the preceding day. Following the implementation of the recommendations of the 4th CPC by the Railway Administration, the applicant was paid subsistence allowance on the basis of the revised pay scales w.e.f. 01.01.1986 which he would have got had he been in duty from 04.06.1996 to 30.12.1994. However, subsequently, the subsistence allowance of the applicant was re-fixed on the basis of the last pay drawn at the time of suspension on 25.12.1985 in view of the Railway Boards OM dated 30.11.1993. The argument forwarded by the respondent in this case was that a railway servant under suspension is not entitled to exercise the option under Rule 6(1) of the RS Pay Rules and Rule 7 Note-3 of CCS (Revised Pay) Rules, 1977 and he is entitled to get allowances as a part of what he had last drawn prior to his retirement. The Full Bench had taken cognizance of the fact that subsistence allowance is to be paid while government servant is under suspension and further that the order of suspension does not put an end to his service. He continues to be a Member of the Service though he is not permitted to work during the period of suspension. Therefore, he is paid an allowance known as subsistence allowance which is generally less than the salary of the employee which he would have otherwise got. During the period of suspension, a government servant is not supposed to take up any other employment [State of Maharasthra Vs. Chandrabhan (AIR 1983 SC 803 para 23]. The Full Bench of the Tribunal further held that the very nomenclature of allowance makes it clear that the amount paid to such a government servant should be sufficient for bare subsistence in this world in which the prices of the necessities of the life had been increasing every day on account of inflationary conditions [P.L. Shah Vs. Union of India and Another (1989 1 LLN 546]. The fact of suspension of a government servant being allowed to continue and bound by the Service Rules casts a duty upon the Administration to treat such suspended employee in service of the Government and confer such benefits to him to which he had been otherwise entitled [Sumer Chand Khajuria Vs. State and Others (1991-2-AISLJ-168]. The Full Bench further referred to the case of Swarnamba B.R. Versus Karnataka State Agricultural Marketing Board [1988(2) SLR 541] and interpreted the words leave salary and pay to mean the revised pay scale and struck down that part of the Office Memorandum prescribing that the leave salary on half pay has to be calculated with reference to the pay drawn on the date of suspension. The Full Bench of the Tribunal held that a suspended employee is entitled to the subsistence allowance which is payable month to month has to be paid on the basis of the revised pay scale to which he would be entitled had he been in service.
15. In the case of Sub Inspector Sanjay Sharma and Others versus Government of NCT of Delhi & Others [OA No. 935 and other connected OAs decided by a common order on 09.12.2009], the Full Bench was faced with identical question. It decided to overlook the judgment in the case of Namdeo Sitaram Kapate Vs. Union of India [1997 (2) ATJ 296 FB]. It has sounded a different note to hold that a person who is under suspension will be entitled to claim subsistence allowance at the revised rate of pay in case had he got the revised pay structure during the period of suspension. In the case of Union of India versus R.K. Chopra [2010 (2)SCC 763], Honble Supreme Court considered the similar question and held as under:-
26. On a combined reading of Note 3 to Rule 7 of the Revised Pay Rules and FR 53(1)(ii)(a) with the clarification with Office Memorandum dated 27th August, 1958 it is clear that if the revision of pay takes effect from a date prior to the date of suspension of a Government servant then he would be entitled to benefit of increment in pay and in the subsistence allowance for the period of suspension, but if the revision scale of pay takes effect from a date falling within the period of suspension then the benefit of revision of pay and the subsistence allowances will accrue to him, only after reinstatement depending on the fact whether the period of suspension is treated as duty or not. In view of the clear distinction drawn by the Rule making authority between the cases in which the Revised scale of pay takes effect from a date prior to the date of suspension and a date falling within the period of suspension, the plea of discrimination raised cannot be sustained especially when there is no challenge to the Rules. The benefit of pay revision and the consequent revision of subsistence allowance stand postponed till the conclusion of the departmental proceedings, if the pay revision has come into effect while the Government servant is under suspension. So far as the present case is concerned, the Revised Pay Rules came into force on 1st January, 1996 when the respondent was under suspension and later he was dismissed from service on 04.08.2005 and hence the benefit of pay revision or the revision of subsistence allowance did not accrue to him. The Tribunal as well as the High Court have committed an error in holding that the respondent is entitled to the benefit of Revised Pay Rules. We, therefore, allow the appeal and set aside those orders.
16. The admitted position in the case in hand is that his deemed suspension had taken place from 05.03.2004. Therefore, the case of the applicant does not get covered by the judgment in R.K. Chopras case (supra). It is apt to note that the payment of subsistence allowance to a government servant is regulated by FR 53 (1) which reads hereunder:-
"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) xxxx xxxx xxxx xxxx
(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 from time to time on the basis of pay of which the Government servant was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances.
17. The applicant, who is admittedly governed by Indian Police Service (Pay) Rules, 2007, has referred to Rule 4 of the Rules ibid which provides as under:-
4. Fixation of pay in the revised pay structure The initial pay of a member of the Service who opts or deemed to have opted in accordance with these rules, to be governed by the revised scale on and from the 1st day of January, 2006 or from a later date, which shall be re-fixed as from that date separately in respect of his substantive pay in the permanent post on which he holds a lien or would have held a lien if it had not been suspended, and in respect of his pay in the officiating post held by him, in the following manner, namely:-
(A) in the cases of all members of the Service,-
the pay in the pay band or pay scale shall be determined by multiplying the existing basic pay as on 1st day of January, 2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10;
if the minimum of the revised pay band or pay scale is more than if the amount arrived at as per (ii) above, the pay shall be fixed at the minimum of the revised pay band or pay scale;
Provided that
(a) where, in the fixation of pay, the pay of a member of the Service drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands. For this purpose, the increment shall be calculated on the pay in the pay band and the grade pay would not be taken into bunching;
(b) if by stepping up of the pay as above, the pay of a member of the Service gets fixed at a stage in the revised pay band or pay scale (whichever applicable) which is higher than the stage in the revised pay band at which the pay of a member of the Service who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short of that of the former.
(iii) the pay in the pay band shall be determined in the above manner and in addition to the pay in the pay band, grade pay corresponding to the existing scale shall be applicant. However, our attention was drawn to Note I-A to Rule 4-D of the Rules, which provides:-
A member of the Service under suspension, shall continue to draw subsistence allowance based on existing scale of pay and his pay in the revised pay structure shall be subject to the final order on the pending disciplinary proceedings.
18. We find that in none of the judgments, referred to above, Note-I of the Rules has been struck down. In the case of Sub Inspector Sanjay Sharma and Others versus Government of NCT of Delhi & Others (supra), the Full Bench had the opportunity to strike it down but it did not do so. In other words, it had allowed the Note-I to continue on the book of statute implying thereby that the decision was confined to the facts of the particular case under consideration and is not that of universal application. This matter has been further supported by the decision in the matter of Union of India and Others versus R.K. Chopra (supra) wherein also the Honble Supreme Court has not taken the position which had been adopted in the case of J.S. Kharat (supra) and has instead upheld the position that if the employee, who is under suspension, has been extended the benefit of the revised scale prior to his suspension, he would be entitled to get the same. We further take a note of the fact that during the period of suspension, many of the rights of the employee abjure including that of attending office and exercising option for the pay scale. In absence of exercise of these rights, the revised pay scales will not come into operation in so far as the particular employee is concerned. Another fact that we take note of is that under deemed suspension the employee has already lived a part of that order. Under normal suspension, he gets the suspension allowance so that he and his other family members can subsist in coming months whereas in the deemed suspension it is not this position because a part of the suspension has already been lived with.
19. Considering the circumstances in totality, we are of the view that there is no entitlement per se of the employees under deemed suspension under the Indian Police Service (Pay) Rules, 2007 that such an employee be paid subsistence allowance in the revised pay scales. On the contrary, the continuance of Note-I to Rule 4-D makes it quite clear that the suspension allowance during this period will continue to be paid at the old rates. Note-I in a way acts like a non obstante clause which puts a veto to all that might have been provided earlier otherwise. Therefore, we decide this issue against the applicant.
20. As regards issue no. 4 pertaining to payment of interest @ 18% per annum from 22.04.2004 to 25.05.2012 on the amount of subsistence allowance as on 01.02.2011 to the date of its payment upto 28.05.2012, the claim has been answered by respondent no.1 that question of payment of interest would only arise where a claim is admitted. In view of the fact that the above issue has been decided against the applicant, the question of claim of interest @ 18% p.a. does not arise at all. This question is accordingly answered in negative i.e. against the applicant.
21. Now we take up the issue as to whether the period from 05.03.2004 upto 25.05.2008 should be treated as the one spent on duty and payment of full pay and allowances should be made along with interest @ 18% p.a. to the applicant. This issue has also been partly answered while dealing with Issue Nos. 1 & 2 above. It is significant to recall that since the order of the this Tribunal dated 20.12.2007 had set aside the order of compulsory retirement on technical grounds, fresh departmental proceedings were conducted and the applicant was once again visited with the same penalty of compulsory retirement from service in terms of Rule 6(1)(vii) of the AIS(D&A) Rules, 1969 from the date of the issue of the order that being 13.08.2009. The argument which the applicant has used is that on his reinstatement it was statutory and mandatory for the respondent no.1 to issue simultaneous orders u/r 5A(2)(i) of the AIS (D&A) Rules, 1969 regarding the portion of his full pay and allowances that was to be paid to him and u/r 5A(2)(ii) ibid regarding the regularization of the intervening period between the compulsory retirement and the date of Tribunals order i.e. from 22.03.2004 to 20.12.2007 in accordance with the provisions contained in sub-rule (5) of Rule 5. This has been held by the Tribunal in the case of Girdhari Lal versus Delhi Administration [(1993) 25 ATC 32 (Del)] and in OA No. 2002/1998 decided on 01.02.1989. Violation of the above rules was invalid and orders based thereon held bad in law and set aside while granting full pay and costs by the Apex Court in the following cases: (i) O.P. Gupta Vs. Union of India & Ors. [1987 AIR 2257]; B.D. Gupta Vs. State of Haryana [1972 AIR 2472] and D.P.N.R. Sharma Vs. State of U.P. [1962 AIR 1334]. Hence, the applicant has argued that the impugned order dated 26.04.2011 being unlawful and the impugned order dated 29.05.2011 being illegal, both deserve to be quashed and set aside.
22. In the case of Girdhari Lal versus Delhi Administration (supra), the applicant had been reinstated with immediate effect without prejudice to the departmental enquiry pending against him and the suspension period to be decided later on, the Tribunal held that Rule 54-B(1)&(6) provide that when a government servant who has been suspended is reinstated, the authority competent to order reinstatement shall consider and make a specific order regarding the pay and allowances to be paid to the government servant for the period ending with reinstatement and whether the said period shall be treated as period spent on duty. Sub-rule (6) provides that where suspension is revoked pending 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. This includes the power to review the order passed earlier i.e. under sub-rule (1). The question of reviewing the order would only arise if the order exists. The Tribunal though upheld the order of dismissal passed by the competent authority but, in the same breath, also held that the punishing authority had acted illegally in directing that the period during which the petitioner had been placed under suspension should be treated to be period not spent on duty. The Tribunal, therefore, ordered the respondents to pay the usual emoluments during the period he continued to be in uninterrupted service.
23. In the case of O.P. Gupta versus Union of India (supra), the applicant was an Assistant Engineer who had been placed under suspension and reinstated in terms of FR 54. The Honble Supreme Court held in para 17 of its judgment as under:-
17. Under FR 54 when a government servant who had been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall make a specific order (a) regarding the pay and allowances to be paid to the government servant for the period of his absence from duty, and (b) directing whether or not the said period shall be treated as a period spent on duty. In the present case, the Government failed in its duty to pass an order in terms of FR 54 despite repeated representations made by the appellant in that behalf. The learned single Judge was therefore justified in dealing with the question whether or not the period of suspension should be treated as a period spent on duty and to make a direction regarding payment of the full pay and allowances as also to increments to which he would have been entitled to but for the disciplinary proceedings. In M. Gopala Krishna Naidu's case (AIR 1968 SC 240) the civil servant concerned had been exonerated of the charges framed against him in a departmental inquiry. The Government however held that the appellant' s suspension in that case and the departmental inquiry instituted against him 'were not wholly unjustified' and tried to support its action in this Court on the ground that the making of an order under FR 54 was a consequential order. This Court repelled the contention and held that an order passed under FR 54 is not always a consequential order or a mere continuation of the departmental proceedings against the delinquent civil servant. Inasmuch as consideration under FR 54 depends on facts and circumstances in their entirety, and since the order may result in pecuniary loss to the government servant, consideration under the rule must be held to be an objective rather than a subjective consideration. Shelat, J. who delivered the judgment of the Court went on to observe :
"The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice."
However, it is to be noted that the facts of the above case are not similar to the one under consideration. Here, it was a case where under FR 25 the applicant had not been allowed to cross the efficiency bar but in the instant case the applicant has been departmentally proceeded against for eight charges of serious nature and was compulsorily retired. The punishment was subsequently set aside by the Tribunal vide its order dated 20.12.2007 on ground of technical flaws with a liberty to the respondents to start fresh departmental proceedings from the point when the flaw had occurred with further directive that the consequential benefits to be paid on conclusion of the proceedings. The Tribunal had clearly applied its mind and had held the order of compulsory retirement bad under law but on technical ground that a copy of CVC advice had not been provided to the applicant. The Tribunal, therefore, ordered that the respondents are at liberty to proceed afresh with the enquiry from the stage of supply of CVCs order to the applicant along with the enquiry report. However, since the orders have been quashed and set aside on technical grounds, we are not passing any order about consequential benefits. The consequential benefits shall abide the final order in the fresh enquiry from the stage mentioned as above, if any . It deliberately omitted to pass any order regarding consequential benefits which shall abide the final order in the fresh enquiry from the stage mentioned within. This was a deliberate order of the Tribunal after its full application of mind and it overcomes the deficiency and/or requirement of passing an order simultaneously. Consequently, not the entire order but a part of the order dated 05.03.2004 had only been struck down and the other part of the order remained intact. Hence, not only no parallel can be drawn between the case of O.P. Gupta (supra) and the case currently under consideration before this Tribunal but it also overcomes the need to pass an order regarding pay and allowances.
24. Likewise, in the case of B.D. Gupta Versus State of Haryana (supra), the applicant was a temporary Engineer. He was departmentally proceeded against and awarded a penalty of censure. Further, it was also ordered that nothing more than what had been paid as subsistence allowance during the period of suspension was admissible to him. The Honble Supreme Court held as under:-
18. This Court held that cl. (b) of the Fundamental Rule 54 would be applicable in all cases where the officer concerned is not honourably acquitted. Since in that case the Government servant had clearly not been fully exonerated of the charges levelled against him, it was open to Government to decide what period of absence from duty during the period of suspension should be treated as period spent on duty and, also, what proportion of pay and allowances should be given to him. This decision cannot apply to the instant case for the simple reason that Government, by withdrawing the proceedings initiated against the appellant in respect of Charge 1 (b), made it impossible for the appellant to get himself fully exonerated. Since the appellant had been exonerated of Charge 1 (a) and since Charge 1 (b) was withdrawn, it is impossible for Government to proceed on the basis as if the appellant has not been fully exonerated or to assume that the order of suspension was one which was not wholly unjustified. In that view of the matter we do not think that the case of C. A. Nos. 1561 & 1562 of 1966, D/- 6-10-1967 (SC). can be of any assistance to the respondents. However, we find that FR 54 is not applicable to the facts of the case in hand because the applicant has been departmentally proceeded against twice and has been held guilty of the charges and compulsorily retired on both the occasions. Therefore, FR 54(A) will not be applicable at all.
25. Likewise, in the case of Devendra Pratap Narain Rai Sharma versus State of U.P. and Others (supra), the applicant was Inspector Qanungo in Revenue Department in the State of UP and was suspended and enquiry against the charges of misdemeanor commenced. The applicant in that case was ordered to be reverted to the post of Niab Tehsildar. He challenged the order of the Collector, Jhansi on the ground that he had not been given adequate opportunity to defend himself. The applicant was again suspended on July 11, 1959 by the Board of Revenue which also ordered that the salary of the applicant should be fixed in a particular manner. The Honble Supreme Court held in this matter as under:-
This rule has no application to cases like the present in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated. This rule, undoubtedly enables the State Government to fix the pay of a public servant whose dismissal is set aside in a departmental appeal. But in this case the order of dismissal was declared invalid in a civil suit. The effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous. The effect of the adjudication of the civil courts is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.
12. The High Court has disallowed to the appellant his salary prior to the date of the suit. The bar of O. 2 R. 2 of the Civil Procedure Code on which the, High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court.
13. The order of the High Court therefore is confirmed. The State has made a wholly unjustifiable claim to fix the salary of a public servant wrongfully prevented from performing his duties, even after he is reinstated in consequence of a decision of the civil court declaring his dismissal as wrongful. As, however, the principal relief claimed by the appellant is not granted we think that the proper order is that there will be no order as to costs throughout.
26. We find that the facts of the above case are also not similar to the facts of the case in hand as here the applicant has been found guilty in two departmental proceedings and has been ordered to be compulsorily retired. However, the ratio propounded in the case of Devendra Pratap Narain Rai Sharma versus State of U.P. and Others (supra) that a State Government has the power to suspend an employee and to proceed against will hold good. Here, that is not the issue in question. The issue involved in the present case pertains to payment of allowances during the period of deemed suspension.
27. This Tribunal was faced with a similar situation in the matter of Vipul Raj versus ICAR & Anr. [OA No.2720/2012 decided on 13.05.2013]. Here the applicant was caught red handed by the CBI while demanding and accepting the bribe of Rs.8,000/- on 16.12.2002. He was departmentally proceeded against and was removed from service by the Disciplinary Authority, vide order dated 08.08.2006. This order had been confirmed by the Appellate Authority. This Tribunal, vide its order dated 20.04.2009 in OA No. 237/2008 had quashed both the orders on technical grounds while making it plain that no direction was given regarding the payment of consequential benefits. This order of the Tribunal was subsequently upheld by the Honble High Court of Delhi with minor modification, vide its order dated 13.09.2010. The applicant in OA No.2720/2012 came to this Tribunal seeking subsistence allowance from 08.08.2006 as the order of deemed suspension had been issued from that date. This Tribunal, having examined Rule 10(3) & 10(4) of the CCS (CCA) Rules, 1965 and the provisions of FR 53 (i) & (ii), reached the conclusion that the subsistence allowance had been made a part of the consequential benefits as directed by this Tribunal. Since the applicant having subsisted for the period from 08.08.2006 till the date of his effective reinstatement i.e. 11.03.2011, this Tribunal held that the applicant in that case would not be entitled to subsistence allowance having subsisted for this long.
28. In consideration of the above facts, we are firmly of the opinion that the applicant has failed to establish any case vide which the period from 05.03.2004 upto 25.05.2008 could be ordered to be treated as the one spent on duty and the respondents could be directed to make the payment of full pay and allowances along with interest @ 18% per annum to the applicant.
29. The individual issues have been answered themselves as above. In conclusion, we find that only Issue No.1 has been answered in favour of the applicant. Therefore, we partly allow this Original Application with the following directives:-
The respondents are directed to release the pay for one day only i.e. 26.05.2008 along with interest @ 9% per annum thereon and a corrigendum be issued to that effect;
Since other issues have been decided in favour of the respondents, the rest of the reliefs prayed for are disallowed.
There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
/naresh/