Central Administrative Tribunal - Delhi
Sh. K.K. Saxena vs Delhi Development Authority on 19 September, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2662/2010
New Delhi this the 19th day of September, 2011.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. K.K. Saxena,
S/o late Sh. K.P. Saxena,
R/o B-108, South Ganesh Nagar,
Delhi-92. . Applicant
(through Sh. R.A. Sharma, Advocate)
Versus
1. Delhi Development Authority
through its Vice-Chairman,
Vikas Sadan (B-Block) Ist Floor,
Near INA, New Delhi-23.
2. Commissioner (Personnel),
Delhi Development Authority,
Vikas Sadan (B-Block) Ist Floor,
Near INA, New Delhi-23. . Respondents
(through Sh. Karunesh Tandon, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the order dated 23.04.2010 (Annexure A-1) of Deputy Director (P)-I DDA refusing to grant leave encashment facilityto the applicant during his period of suspension/deemed suspension. He has also challenged the order dated 23.06.2010 (Annexure A-2), wherein it is stated that the direction of the Tribunal made in its order dated 29.04.2009 in OA-1944/2008 had already been implemented and there was no scope for further review. He has sought the following reliefs:-
(a) Direction be issued to the respondents to issue orders allowing revised pay scale, as the case may be, releasing all the increments during the period of suspension/deemed suspension, granting financial upgradations under the ACP Scheme (from 09.08.1999 and 20.11.2000) & pay the balance of subsistence allowance to the applicant at the enhanced rate of 75% from the date of expiry of first three months of suspension/deemed suspension onwards based on the notional emoluments; fix the pay accordingly on the date of reinstatement of the applicant on 09.07.2002 and pay the balance of all the retiral benefits viz., pension, pension commutation, gratuity, leave encashment etc. accordingly.
(b) Direction be issued to the respondents to pay to the applicant interest @ 20% on all the above balance dues from the date the same became due to the applicant till the date of their realization.
(c) Allow costs in favour of the applicant and against the respondents.
(d) Pass any other or further order or orders may deemed fit and proper in the facts and circumstances of this case.
2. Brief facts of the case are as follows:-
2.1 While working as Junior Engineer (Civil) in the Building Section of DDA the applicant was placed under suspension on 04.09.1986 and major penalty disciplinary proceedings were started against him on 12.12.1986 on the basis of allegations that he adopted delaying tactics with ulterior motive of harassing parties and extracting illegal gratification from them. He was reinstated in service on 29.06.1987. After regular enquiry, the penalty of removal from service was imposed on him, which was confirmed by the Appellate Authority (AA) on 19.04.1991. He filed Writ Petition No. 3100/1992 before the Honble High Court of Delhi, which was allowed on 19.02.2002 and the orders of the Disciplinary Authority (DA) and the AA were set aside on the ground that the order of removal was issued by an incompetent authority; the Vice-Chairman, DDA was asked to act as the DA and take appropriate decision in accordance with law. He was placed under deemed suspension from the date of his removal (30.04.2002) to the date of passing of this order. The DA in its order dated 09.07.2002 directed for reinstatement of the applicant and imposition of the penalty of reduction of his pay to the lowest stage of his scale of pay for five years with cumulative effect. After serving a show cause notice the period of suspension/deemed suspension was not treated as duty but regularized by grant of leave due under provisions of FR-54B. The appeal filed against this order was rejected by the AA on 03.12.2004. Thereafter, the applicant filed OA-1944/2008 which was disposed of on 29.04.2009 by upholding the penalty awarded against the applicant, but with a direction to treat the period of suspension as on duty for the purpose of pensionary benefits but without any entitlement for payment of salary. There is a difference of perception here: the applicant feels that the order was to treat the period of suspension as on duty for all purposes except for payment of salary, whereas the respondents understand it as a direction to treat the period of suspension as duty for pensionary benefits only. Further, the respondents were directed to pay subsistence allowance to the applicant for the period. The respondents state that this direction was implemented vide the order dated 14.09.2009 of the Vice-Chairman, DDA and the applicants claim for subsistence allowance was allowed and paid. The applicant made representations claiming higher rate of subsistence allowance as well as leave encashment facility during the long period of suspension; his representation was rejected, giving rise to the present O.A.
3. The learned counsel for the applicant confined his arguments to the claim of the applicant for re-calculation of the subsistence allowance: (a) for a higher rate of 75% after three months of suspension in terms of FR-53, (b) benefit of revision of pay scale and consequential revision of the subsistence allowance, (c) grant of annual increments and (d) consequential increase in the subsistence allowance. He also argued for grant of leave encashment facility during the period of suspension treating it as on duty.
4. Learned counsel for the applicant draws our attention to the observations of this Tribunal in OA-1944/2008 where, according to him, a view was taken that except for payment of salary, the entire period from 04.09.1986 to 30.04.2002 was directed to be treated as on duty for all purposes but without payment of emoluments. In view of such a direction, he submits, the claim of the respondents to deny the applicant any other benefit other than grant of subsistence allowance at 50% of salary is not tenable. He places reliance on a number of judgments (mentioned below) in support of his claim that the applicant is entitled to benefits of annual increments as well as pay revision and review for grant of subsistence allowance at higher rate after three months.
(i) U. Ganga Raju Vs. Divisional Railway Manager, South Central Railway, Vijayawada and others, (1993) 23 ATC 543 P.C. Misra Vs. U.O.I. & Ors., (OA-1056/2008) decided on 07.11.12208.
U.O.I. Vs. P.C. Misra & Ors., (WP(C) No. 9042/2009) decided on 15.02.2010.
(iv) U.O.I. Vs. R.K. Chopra, (2010) 2 SCC 763
(v) H.S. Ramakrishna Vs. The Commissioner of Central Excise and Anr., AISLJ 2002(3)(CAT) 440 4.1 In the case of U. Ganga (supra) it was held by the Tribunal that unless annual increments are withheld by a specific order of the DA, an employee would be entitled to the benefit of increments for computation of increments in his subsistence allowance. This judgment was followed in the order dated 07.11.2008 of this Tribunal in the case P.C. Mishra (supra). The Honble High Court upheld the order of the Tribunal in this case in Writ Petition No. 9042/2009 (supra) and directed for release of increments to the employee concerned and re-calculation of his subsistence allowance. The Honble High Court discusses the judgment of the Apex Court in the case UOI Vs. R.K. Chopra (supra) and comes to a conclusion that on re-instatement an employee will be entitled to the benefits of pay revision during the period of his suspension in case the period of suspension is treated as duty. Further, it was held that the employee would be entitled to the benefits of increments unless a specific order withholding the increments had been passed by the DA under provisions of relevant rules.
4.2 Learned counsel submits that since this Tribunal had already granted all benefits except payment of salary by treating the period of suspension as duty, the applicant could not be denied the benefits of leave encashment and other benefits prayed for in this application.
4.3 Learned counsel draws our attention to the specific direction of this Tribunal which says that the subsistence allowance was to be calculated with reference to the notional emoluments which the applicant would have drawn during the period. In other words, the Tribunal had granted the relief that the subsistence allowance should be worked out on the basis of his notional emoluments due to him on sanction of annual increments as well as revision of pay scales.
5. The learned counsel for the respondents draws our attention to the specific direction of this Tribunal contained in paragraphs 14 and 15 of OA-1944/2008 and submits that the direction was only to treat the entire period as duty for pensionary benefits. Therefore, the claim for revision of subsistence allowance on the basis of annual increments or revision of pay scale or review for enhancement of the rate of the allowance did not arise. He submits that the Tribunal had twice mentioned that the period was to be treated on duty only for the purpose of pensionary benefits. Besides, the applicant had no grievance that the aforesaid direction had not been complied with; otherwise, he would have filed a Contempt Petition. It was pointed out that during the course of arguments, the learned counsel for the applicant admitted that payment towards subsistence allowance had been received and, to that extent, the direction of this Tribunal had, in fact, been implemented. In this view of the matter, there was no scope for the applicant to file the present O.A. 5.1 He submits that no review of the suspension as contemplated under FR-53 was possible as the employee was no longer in service till his order of removal was set aside by the Honble High Court on technical grounds and he was re-instated in service. The provision relating to review is applicable to an employee who continued to be under suspension and no final decision had been taken in the disciplinary proceedings started against him. But this provision would not be applicable for an employee who was no longer in service. As regards benefit of revision of service, he places reliance on the judgment of the Honble Supreme Court in the case of R.K. Chopra (supra) where a view was taken that if the pay revision took place prior to the date of suspension, the employee would be entitled to subsistence allowance based on the revised pay; if the revision took place after the date of suspension, the benefit would accrue to him only if his period of suspension is treated as duty. Admittedly, in this case, it was treated as duty only for the purpose of pension. Therefore, the benefit claimed by the applicant could not be granted to him.
6. Since all the issues raised in this application had been agitated earlier in OA-1944/2008, it would be relevant to examine the nature of direction which was given by this Tribunal in that case. The relevant paragraphs are extracted below:-
14. The officer was placed under suspension, on 4.9. 1986 and was reinstated on 29.6.1987, and continued. The officer was not in service for over ten years, but because of the order of the High Court, he is under deemed suspension from 12.2.1991 the date of removal upto 30.4.2002. Since the High Court had found that the punishment order was at the instance of the incompetent authority, we are of the view that the applicant is entitled to this observations out right. Therefore, the period from 4.9.1986 to 30.4.2002 require to be treated as period spent on duty and should add on the service of the applicant for all purposes but without payment of any emoluments, then that has already been paid ( since for a brief period he was in service). Any of this period could not be ignored as service for the purpose of pensionary benefits. The duration from1.5.2002 to the date of penalty advise, namely, Annexure A-2 dated 9.7.2002 although could have been treated at the discretion of the disciplinary authority, in so far as the subsistence allowance has been ordered to be paid and since the period is too short to be specifically treated otherwise, we are of the view that this period also is to be treated as service for the purpose of pensionary benefits, as spent on duty.
15. Now the question arise about the justifiability of order dated 14.1.2003 (Annexure A-3) with reference to the benefit of subsistence allowance admissible to the employee as confirmed by the appellate order. Although Mr. Sharma has submitted that under FR 53 the period has to be treated as service for all purposes, including pay, we do no think that the above course is legally acceptable as far as the claim for full pay is concerned. However, there is no justification to deny him his subsistence allowance as would have been admissible for the above term, with reference to his notional emoluments which he would have drawn for the period. This cannot be withheld or negated as the High Court indicated that removal order is without proper authority of law, and the order in CP 6153/2002 govern the parties. It is settled position that claim of subsistence allowance stands on a different footing and it cannot normally be denied. The only pre-condition is that applicant should submit a certificate in respect of the period concerned declaring that he was not employed during the said period, gaining salary or emoluments. If such a certificate is given, the applicant is to be paid subsistence allowance for the whole period he was faced to remain out of service. Expeditious steps are to be taken to settle such claims. At one stage it is mentioned that the period from 04.09.86 to 30.04.2008 required to be treated as period spent on duty and should add on the service of the applicant for all purposes but without payment of any emoluments, than that has already been paid. The next sentence reads any of this period could not be ignored as service for the purpose of pensionary benefits. While dealing with the duration 01.05.2002 to 09.07.2002, it says that we are of the view that this period also is to be treated as service for the purpose of pensionary benefits, as spent on duty. From an over all assessment of the direction we feel that it was for treating the period of suspension as duty only for the purpose of pensionary benefits without any entitlement for emoluments.
6.1 The Tribunal also held that while the claim for full pay for this period was not tenable, there was no justification to deny him his subsistence allowance as admissible with reference to his notional emoluments to which he was entitled during that period.
7. The overwhelming judicial opinion suggests that an employee under suspension will be entitled to the benefits of annual increments and consequential revision of his subsistence allowance during the period of suspension in case there was no specific order to withhold the increments. In this case also the Tribunal in the earlier OA had directed that the applicant would be entitled to subsistence allowance on the basis of his notional emoluments. From the counter reply it is not forth coming whether the respondent authority had specifically passed orders withholding annual increments of the applicant. Although the respondents have mentioned that they have implemented the direction of this Tribunal, it is not forthcoming from their reply whether the notional emoluments payable to the applicant after taking into account his annual increments was considered while determining his subsistence allowance or not. The respondent authorities are therefore directed to examine the issue of calculation of the subsistence allowance in the light of the aforesaid observation and the earlier direction given by this Tribunal in OA-1944/2008.
7.1 As regards fixation of salary as per pay revision and computation of subsistence allowance on that basis, we have to go by the ruling of the Apex Court in the case of R.K. Chopra (supra). Paragraph-19 of this judgment which reads as under:-
The above mentioned Rules as well as the Memorandum makes it clear that if there is a revision of scale of pay in respect of a post held by a Government Servant, prior to the suspension period, he is permitted to exercise option under FR 23, even if the period during which he is to exercise the option falls within the period of suspension and then, he will be entitled to the benefit of increase in pay and also in subsistence allowance for the period of suspension, as a result of such option. But if the revised scale of pay takes effect from a date falling within the period of suspension then, the benefit of option, for revised scale of pay will accrue to him in respect of the period of suspension only after his reinstatement depending on the fact whether the period of suspension is treated as duty or not.
8. His entitlement for pay revision during the period of suspension will depend on the fact whether the period is treated as on duty or not. From our foregoing discussion, we have come to the conclusion that the period was treated as duty only for the purpose of pensionary benefits. In that view of the matter, the claim for re-fixation of subsistence allowance on the basis of revised pay is not tenable. Since the Tribunal has already decided the issue in the earlier OA, this claim of the applicant is no longer open to further adjudication.
9. As regards enhancement of subsistence allowance consequent on review after three months, we find that the judicial opinion is in favour of such a review. This Tribunal was considering a similar case in Amar Bahadur Mishra Vs. U.O.I., 2002(3)(CAT) 322 and decided that the railway employee who was under deemed suspension was entitled to enhancement of subsistence allowance to 75% if the employee was not at fault. In that case, the railway employee, after enquiry, was removed from service. On challenge before the Tribunal, the penalty of removal was set aside. His period of removal was treated as deemed suspension and he was paid subsistence allowance at the rate of 50%. As there was no review for any change in the rate of subsistence allowance the respondents were directed to review the matter and pass suitable orders according to law. The learned counsel for respondents submits that there is no vested right with the applicant that the rate of subsistence allowance would invariably increase. FR-53 says that the issue should be considered by respondent authority who would take a decision keeping in view all the facts and circumstances of the case particularly the issue whether the delay could be attributed to the applicant or otherwise. In the case of Umesh Chand Mishra Vs. U.O.I., 1993 Supp.(2) SCC 210 the Honble Supreme Court allowed higher rate of 75% subsistence allowance beyond three months. In the case H.S. Ramakrishna (supra) this Tribunal held that making a review is mandatory and if it is not possible to hold the applicant responsible for delay he was entitled to enhancement of subsistence allowance as prayed for.
9.1 In view of the preponderance of the judicial opinion in favour of such a review, and since in this case no review was possible because of removal of the employee during his long period of deemed suspension, nor was made after his reinstatement we would direct the respondent authority to make a review of the case for grant of his claim for higher subsistence allowance and take appropriate decision according to law.
9.2. Since his entire period of his suspension/deemed suspension has been treated as duty only for pension, the applicant would not be entitled to leave encashment benefit during this period.
10. The respondents are directed to pass orders in terms of the aforesaid directions and re-fix his pension within a period of three months from the date of receipt of a copy of this order.
11. The O.A. is disposed of in terms of the aforesaid directions. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber)
Member (A) Member (J)
/vinita/