Central Administrative Tribunal - Ernakulam
C. Sasikumar vs Union Of India on 30 May, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00210/2016
Tuesday, this the 30th day of May, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
C. Sasikumar, aged 66 years, S/o. Chellappa Pillai,
(Retired Senior Gate Keeper/Southern Raiwlay/
Nagercoil Junction Railway Station), Residing at
No. 92/11-B, Kailas Gardens, West Street, Krishnan Coil,
Nagercoil, Kanyakumari Dt. 629 001. ... Applicant
(By Advocates : Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by the General Manager,
Southern Railway, Headquarters Office, Park Town PO,
Chennai - 600 003.
2. The Divisional Railway Manager, Southern Railway,
Trivandrum Division, Trivandrum - 695 014.
3. The Divisional Railway Manager/Works/Southern Railway,
Trivandrum Division, Trivandrum - 695 014.
4. The Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum - 695 014.
5. The Assistant Divisional Engineer, Southern Railway,
Nagercoil Junction Railway Station, Nagercoil,
Kanyakumari District - 629 002. ... Respondents
(By Advocate: Mrs. K. Girija)
This application having been heard on 15.05.2017, the Tribunal on
30.05.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicant is a retired Senior Gate Keeper. He is aggrieved by denial of grant of settlement benefits and other retirement benefits on culmination of departmental proceedings in which after his retirement a penalty of 10% cut in pension for a period of two years has been imposed. He is further aggrieved by Annexure A1 communication rejecting his request for regularisation of the period of suspension on an unsustainable ground that he was not 'on effective duty' during the period of suspension. He states that he was placed under suspension by respondent No. 5 with effect from 29.9.2008 vide Annexure A2 order. There was no review of the suspension after the expiry of 90 days nor has it been extended till Annexure A4 order was passed by respondent No. 5 revoking the order of suspension with effect from 2.4.2009. Thereafter a major penalty charge memo was issued to him. In the meantime the applicant was superannuated from service on 29.2.2010. A criminal case was also initiated against him by the Central Bureau of Investigation on the allegation of acquisition of properties disproportionate to his known sources of income. The criminal case ended up in acquittal vide judgment dated 28.6.2012. Though the departmental proceedings were over by an inquiry report dated 29.6.2012 as no final orders were passed by the disciplinary authority/President, he approached this Tribunal by filing OA No. 180/114/2014 which was disposed of by Annexure A5 order directing that the inquiry proceedings should be completed within an outer limit of four months from the date of receipt of a copy of the order. As Annexure A5 was not implemented a contempt petition and an application for execution were filed by the applicant during the pendency of which the Railway Board passed Annexure A16 order dated 18.6.2015 imposing a penalty of 10% cut of pension for a period of two years. When the applicant submitted Annexure A7 representation dated 25.6.2015 for release of various benefits he was informed that he may have to submit a fresh representation with reference to the order of suspension and hence he submitted Annexure A8 representation to respondent No. 3. However, by Annexure A1 order dated 6.10.2015 respondent No. 3 refused to regularise the period of suspension on the ground that he has not been 'on effective duty' and therefore, the period of suspension shall not be treated as duty. The representation of the applicant for granting financial upgradation was sanctioned and respondent No. 4 granted the 1 st and 2nd MACP vide Annexure A10 order dated 24.8.2015. Thereafter Annexure A11 order was issued by way of a corrigendum reducing his pay as on 1.7.2009. Since the period of suspension from 29.9.2008 to 1.4.2009 was not regularised, the said period was not counted for the purpose of qualifying for drawal of annual increment. Accordingly, Annexure A12 revised pension payment order was issued to him. Applicant further states that his retirement gratuity, revised pension and commuted value of pension have not been paid to him. The relief he seeks is as under:
'(i) Call for the records leading to the issue of Annexure A1 and quash the same;
(ii) Declare that the period of the applicant's suspension from 28.12.2008 to
2.4.2009 is void, non-est and inoperative and declare further that the said period is to be treated as duty and qualifying for all purposes, including for the purpose of payment of arrears of pay and allowances, drawal of annual increments, retirement gratuity, pension, leave on average pay etc.. etc. and direct the respondents accordingly;
(iii) Direct the respondents to regularise the period of suspension from 29.09.2008 to 28.12.2008 in accordance with Rule 1345 of the Indian Railway Establishment Vol. II and direct further to grant the consequential benefits arising there from.
(iv) Direct the respondents to release the applicant's retirement gratuity, with applicable interest (for delayed payment of gratuity) to be calculated with effect from 1.3.2010 or at lease with effect from 1.6.2010 up to the date of full and final outcome of the Original Application.
(v) Direct the respondents to release the applicant's composite transfer grant, leave encashment consequent upon the reliefs prayed for in paras above, commuted value of pension, arrears of pay and allowances, etc. etc. with interest calculated @ 9% per annum to be calculated with effect from 1.6.2010 up to the full and final settlement of the same.
(vi) Award cost of and incidental to this application;
(vii) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.'
2. In the reply statement filed by the respondents it is stated that suspension of the applicant was continued due to the fact that the allegations raised against the applicant required considerable period for collection of several records from other departments, asset valuation of the movable and immovable properties acquired by the applicant, details of CBI investigation etc. Till such time the materials in respect of the allegations raised against the applicant were collected, it was necessary to keep the applicant under suspension since, otherwise, he would have meddled up with documents and material witnesses for the investigation. Respondents further state:
'5. It is begged to submit that despite the applicant being kept under prolonged suspension, at any point of time till the period of suspension was revoked, he had not represented to the competent authority to reinstate him in service. Though the applicant now raises a technical contention that he ought not to have been kept under suspension beyond the period of 90 days without review of the order of suspension, neither had the applicant chosen to pray for review of the suspension order and reinstatement him beyond the period of 30 days at the appropriate time, nor had he actually worked during the period of suspension from 28.2.2008 to 2.4.2009. It is only at this belated stage that the applicant is claiming to treat the period beyond 90 days as duty for all purposes and to disburse him the attendant benefits.' According to the respondents the period of suspension will have to be regularised by the competent authority only if the said authority is of the opinion that the prolonged suspension was unjustified. As the applicant having not actually worked during the period of suspension and having not represented to the competent authority it is legally impermissible for the applicant to seek for regularisation of the period of suspension on the ground that his suspension ought to have been reviewed beyond the period of 90 days. According to the respondents it took considerable time to complete the disciplinary proceedings and only on culmination of such proceedings his retirement benefits could be disbursed. There was no intentional delay on the part of the respondents to do so.
3. Heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mrs. K. Girija, learned counsel appearing for the respondents. Perused the record.
4. One of the main contentions of the applicant is that on completion of the disciplinary proceedings the competent authority ought to have regularised the period of suspension as provided for in Rule 1345 of the Indian Railway Establishment Code, Volume II. According to him Annexure A1 communication received by him with reference to his request for treating his period of suspension as duty has not dealt with the question whether the suspension was justified and therefore, Annexure A1 is without application of mind. Annexure A1 reads:
'No. V/W/349/Court Case Date:06-10-2015
DPO/TVC
Sub: Suspension period of Sri C. Sasikumaran, Retd. Sr. GK/PW/NCJ - reg.
Ref.: 1. Your letter No. V/P.483/PW/TVC dt. 10-08- 2015.
2. This office letter of even No. dt. 13-08-2015
3. Your letter No. V/P.48/PW/NCJ dt. 15-09-2015
4. Letter received from Shri C. Sasikumar, Retd.
Sr. GK/NCJ With reference to the above, it is advised that when Shri C. Sasikumaran, Retd. GK. SSE/PW/NCJ was advised to submit a representation as warranted by IREC, he in turn has submitted a letter dt. 18-09-2015 (copy enclosed) requesting to regularize his suspension period as duty.
In this connection, it is opined that as the employee has not undertaken effective duty, the period of suspension shall not be treated as a period spent on duty.
Enclo: As above.'
5. Smt. Girija, learned counsel for the respondents, submitted that the applicant has undergone the disputed period of suspension and that he has never applied for reinstatement while under suspension. Referring to Union of India v. Deepak Mali - 2010 (2) SCCC 222 and Ajay Kumar Choudhary v. Union of India and Another - (2015)7 SCC 291 Shri Govindaswamy, submitted that extension of suspension beyond the period of 90 days will not be valid if such extension is without conducting a review or extension after the expiry of the 90 days of the 1 st suspension. In this connection he referred to RBE No. 92/2006, a copy of which is marked as Annexure A3. The relevant portion of the RBE is extracted below:
'..............
2. In the Railway Servants (Discipline and Appeal) Rules, 1968, in rule 5, after sub rule (5) the following sub-rules shall be added, namely:-
'(6) Notwithstanding anything contained, in sub-rule(5) an order of suspension made or deemed to have been made under sub-rule (1) or sub- rule (2) shall not be valid after a period of ninety days unless it is extended after review in the manner provided in sub-rule (7) of this rule, for a further period before the expiry of ninety days.
(7) The review of an order of suspension shall be done by the authority which is competent to modify or revoke the suspension, on the recommendation of the review committee constituted for the purpose, and such competent authority shall pass orders either extending or revoking the suspension before the expiry of ninety days from the date of order of suspension. Subsequent reviews shall be made before the expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.'
6. In the light of the apex court ruling in Deepak Mali's judgment it can be seen that Annexure A2 suspension order of the applicant has indeed expired on the 90th day after 29.9.2008. Therefore, the continuation of his suspension without review or extension after the expiry of the said 90 days is illegal. In this case the suspension of the applicant has been revoked vide Annexure A4 order with effect from 2.4.2009. However, as no review or extension was made before the expiry of 90 days from 29.9.2008, Annexure A4 revocation of suspension has lost its significance because as there was no review or extension before the expiry of the 1 st 90 days of his suspension the remaining period should be treated as active service of the applicant. Therefore, after the expiry of the 90 days from Annexure A2 order applicant should be deemed to have been in service continuously till his retirement.
7. The grievance of the applicant is that when Annexure A6 presidential order dated 18.6.2015 imposing penalty was issued there was no mention as to how to treat the period of suspension of the applicant. The contention of the respondents is that applicant had never made any representation for passing an order for treating the period of suspension as service and as he has not done so, he cannot at this late stage get an order from this Tribunal. Shri Swamy referred to Rule 1345 of IREM Volume-II which deals with the pay and allowances to be paid to the railway servants for the period of suspension ending with reinstatement or the date of his retirement as the case may be. Rule 1345 reads:
'1345.(1) When a railway 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 railway 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.
(2) Notwithstanding anything contained in Rule 1343 where a railway servant under suspension dies before the disciplinary or the court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the railway servant 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 railway 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 communications in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recoded in writing, that the railway 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 railway 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 eh would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the railway 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 finalisation of the disciplinary or the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the railway 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 railway servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
NOTE-The order of the competent authority under the proceeding proviso shall be absolute and no higher sanction shall be necessary for the grant of-
(a) extraordinary leave in excess of three months in the case of temporary railway servant; and
(b) leave of any kind in excess of five years in the case of permanent or quasi-permanent railway servant.
(8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.
(9) The amount determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342.'
8. A reading of the aforequoted provision makes it clear that if the competent authority ordering reinstatement is of the opinion that suspension was not wholly justified the Railway servant will be paid pay and allowances which he would have been entitled had he not been suspended. In the instant case by Annexure A4 his suspension was revoked. As per Annexure A3 amendment of Railway Servants (Discipline & Appeal) Amendment Rules, 2006 as the applicant's suspension was not reviewed or extended before the expiry of 90 days from 29.9.2008 he is deemed to have been reinstated immediately after the expiry of such 90 days. Thus, he is deemed to have been in service after the expiry of 90 days from 29.9.2008. Though the disciplinary proceedings continued even after his retirement, during such proceedings he was never under suspension. In the above circumstance the disputed period of suspension can only be in relation to the period of 90 days from 29.9.2008.
9. According to the respondents there was no reason for the authority who ordered reinstatement of the applicant to feel that the suspension was wholly unjustified. On the other hand, according to the respondents, his suspension was necessary as the details and the records relating to his disciplinary proceedings including the valuation of the properties acquired by him had to be obtained from different offices it took some time. According to the railway it was not desirable to have him reinstated as he was likely to tamper with the records and material witnesses. Referring to Annexure R1 OM dated 20.6.1986 issued by the Department of Personnel & Training, DOP&T, Government of India it was submitted by the counsel for respondents that in cases of corruption there is adequate justification for placing the concerned Government servant under suspension. She pointed out that it took considerable time to complete the disciplinary proceedings and there was no intentional delay or lapses on the part of the respondents in disbursing the terminal benefits to him before the culmination of disciplinary proceedings.
10. The record in this case shows that the disciplinary proceedings initiated against the applicant and the criminal case in which he was acquitted was in relation to acquisition of wealth by the applicant and his wife disproportionate to his known sources of income. Therefore, obviously, it was a case under the Prevention of Corruption Act. Therefore, this Tribunal feels that respondents were perfectly justified in placing him under suspension as per Annexure A2 order dated 29.9.2008. However, as observed above, as there was no review or extension of his suspension after the expiry of 90 days the remaining period during which he remained under suspension has to be treated as service for all purposes.
11. In the light of the above discussion the applicant is entitled to all service benefits except for the subsistence allowance for the period of 90 days from 29.9.2008. Annexure A6 Presidential order imposes a 10% cut in pension payable to the applicant for a period of two years. There is nothing to show that Annexure A6 has been challenged by the applicant.
12. In the above circumstance the Tribunal is inclined to pass the following order:
a) The respondents shall re-fix the pension of the applicant excluding the period of 90 days of suspension with effect from 29.9.2008 and shall issue pension payment order to the applicant and release gratuity and other monetary benefits like composite transfer grant, leave encashment, commuted value of pension, etc. subject to Annexure A6 Presidential order, within two months from the date of receipt of a copy of this order.
b) Respondents shall pay interest at the rate payable to the General Provident Fund deposits to the applicant for the delayed payment of gratuity with effect from 18.6.2015 till the date of actual payment.
13. OA is allowed to the extent as ordered above. Parties shall suffer their own costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER ''SA''