Central Administrative Tribunal - Mumbai
Neeraj Singh vs Revenue on 26 September, 2022
1 . OLA. No.f19/2091 lrem No.20 Bi, Central Administrative Tribunal Mumbai Bench, Mumbai O.A. No.613/2021 Order reserved on 7 September, 2022 Order pronounced on 26% September, 2022 Hon'ble Mrs. Harvinder Kaur Oberoi, Member G)} Neeraj Singh (Group A} s/o Dr, Tribhuwan Singh, Aged about 52 years Presently CIT Mumbai Under suspension v/o B-1101, Ayakar Rajlaswa Awas Bandra Kurla Coniplex, Bandra (EB), Mumbai -- 51 Applicant (Mr. Rajeev Kumar, Advocate) Versus i Union of India Through the Secretary (Revenue}, North Block, Ministry of Finance New Delhi--1 2, Central Board of Direct Taxes Through its Chairman, North Block, Ministry of Finance, New Delhi -- 1 3, Principal Chief Commissioner of Income Tax as Bloor, Aaykar Bhawan, New Marine Lines, Munibai ~ 400 o20 . Respondents (Mr. Subir Kumar, Advocate) ftam No.2a } te f O.A.No.639/2024 xX xr ty, BN ee 3 ORDER
iz Bes = \ This is the second round of litigation. Suceinetly, the facts of the case are that the applicant joined as Assistant Commissioner of Income Tax at National Academy of Direct Taxes, Nagpur on probation basis wef. 05.09.1994, The respondents, exercising the powers conferred under sub- tule (1) of Rule 10 of CCS (CCA) Rules, 1965, placed the applicant under suspension, through an order dated 01.07.2019. His suspension. was reviewed and extended from time to time; the last of which js through order dated 19.09.2020 for a period of 180 days beyond ae 22.09.2080. On 17.06.2619, a memorandum was issued to the applicant levelling certain charges. The inquiry and presenting officers were appointed to inquire into the charges framed against the applicant. The preliminary hearing in the inquiry was fixed for 18.02.2020, however, the inquiry was adjourned sine die. Thereafter, on the request. of the applicant, the defence assistant was appointed in the matter. On 24.12.2020, the applicant sent an email to the Chairman, Central Board of Direct Taxes, Department of Revenue for enhancement of subsistence allowance on the ground that he is under suspension for more than one and half years, When no response was received by the respondents, he filled O.A, No.Gig/2ant Hem No.2 O.A, No.210/2021 before this Tribunal seeking the following
- yeliefs:~ "(a} Call for the records of the case.
(bh) Issue suitable directions or pass any order directing the respondents to review and enhance the subsistence allowance after the completion of 90 days of suspension order dated 1° July 2016 retrospectively along with interest at GPF rate thereon.
{c) Pass any other or direction which this Hon'ble Tribunal thinks fit and proper in the facts and circumstances of the case including the casts."
2. he said O.A. was decided by the Tribunal on 04.02.2021, at the threshold, directing the respondents to consider and decide the pending request of the applicant for enhancement of the subsistence allowance within a period of three weeks from the date of receipt of the order.
2. In compliance of the directions of the Tribunal dated o4.02,2081, the respondents passed an order dated 19.03.2021, enhancing the subsistence allowance to. 75% under F.R. 59 G) read with F.R. 53 (2) for a period of 180 days beyond 21.03.2021 or till further orders, whichever is _ earlier, LA. Ne 613/20e2 trem No.2G
4. Dissatisfied with the date of enhancement of subsistence allowance, the applicant filed the instant O.A. seeking the following reliefs:
"fa}) Call for the records of the case.
{b) Issue suitable directions or pass any order directing the respondents to review and enhance the subsistence allowance after the completion of 90 days of suspension order dated 1t July 2019 retrospectively.
(c) Issue suitable orders to the respondent directing them to pay interest at the rate of 15%6 from the end of 90 days after suspension till the date of such payment.
(d) Pass any order or direction which this Hon'ble.
Tribunal thinks fit and proper in the facts and circumstances of the case inchiding the costs."
5. Learned counsel for applicant submitted that since no delay is attributed to the applicant in protracting the inquiry proceedings and conclusion thereof, the respondents ought to have granted the enhanced subsistence allowance after completion of 90 days of suspension order, ie, 90 days after 01.07.2019 and not w.ef. 21.03.2021. He, thus, relies on FLR. 53 (1).
ro In support of bis elaim, the learned counsel for applicant relied upon the following cases:
OA. Ne.613/2027Tribunal G) Ravinder Kumar Mirg v. Union of India & another (O.A. No.513/2014) decided on 18,03.2015, Gi) Sanjay Dawan v. Govt. Of NCT of Delhi (0.A. No.199/2013) decided on 19.08.2013, Hon'ble High Court Gn) 4G. Antonysamy v. Assistant Director of Survey & Land Reeoerds GV.P. OD) No.1975/2017) decided on 13.02.2017 (Madras High Court), fiv) Sunil Kumar v. State of Bihar (Civil Writ Jurisdiction Case No.qg82/2017) decided on 05.00.2017 (Patna High Court), (vy) Mayur Gajanan Kamile vy. Union of India & another (Writ Petition No.go7o/p0e1) decided on 11.08.2021 (Bombay High Court}, Hon'ble Supreme Court
(i) Umesh Chandra Misra v. Union of India & ethers (Civil Appeal Nos.gaig-15 of 1990¢) decided on 19.10.1992; and O.A, No.613/2084 ftarn No.20 (Vv) B D Shetty & another v. M/s. Ceat Limited & ALS Ay ie ys : oy ' "
¢ 4 > another (Appeal (CiviD No.7382/2001} decided on 390.10,2001.
6. Per contra, the respondents have filed their written' statement opposing the O.A. It is submitted that E.R. 53 (1) does not stipulate that it is mandatory to either enhance or decrease the subsistence allowance soon after the first three months of suspension. The proviso to F.R, 53 (2) GD (a) only states that the relevant authority is competent to vary the amount of subsistence allowance and that too for any period subsequent to the period of first three months. The relevant authority may choose not to do any variation at all. It is also submitted that an increase in the subsistence allowance cannot be claimed as a matter of right and the disciplinary authority can also decide not to vary the quantum of subsistence allowance immediately after the first three months. The respondents submit that in the present case, the competent authority decided to enhance the subsistence | allowance from 50% to that of 75%, vide order dated 19.03.2021. It is further submitted that the claim of the applicant for grant of subsistence allowance with retrospective date is not warranted since the respondents have passed the order dated 19.03.2021, which is effective prospectively after considering the facts and circumstances.
wat . OA. No.613/e021 item No.2: :
ARERR 7. In stpport of their defence, the respondents have ZU PN {gs ¥ eaten @ 2 . x P so (se relied upon the following decisions:-
Ves / ) Vipul Raj v. Indian Council of Agriculture Research & another, 2013 SCC OnLine CAT 2638 (Principal Bench); and Gg DBD R Nandakumar v. Union of India & others (0.A. No.180/00134/2016) deeided on 16.03.2021 (Ernakulam Bench).
& The core argument advanced by the applicant is that on an earlier oceasion, the inquiry officer deferred the inquiry proceedings sine die, which has caused delay in its completion and therefore, the delay is attributable to the respondents. Thus, he placed reliance on F.R. 33 (4) (a), which reais:
"FLR. 53. G@) 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:--
G) in the ease of a Commissioned Officer of the Indian Medical Department or a Warrant Officer in Civil employ who is Hable to revert to Military duty, the pay and allowances fo which he would have been entitled had he been suspended while in military employment:
Ze 6 q as JOR [s DP DA No 6139/2021 (iH) in the case of any other Government servant--
{a} a subsistence allowance at an amount equal to the leave salary which the Gavernment 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:
G) the amount of subsistence allowance may be imcreased by a_ suitable amount, not exceeding 50 percent 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;
Gi the ammount of subsistence allowance may be reduced hy a_ suitable amotnt, not exceeding 50 percent of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said authority, the perlod of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the Government servant;
(ii) the rate of dearness allowance will be based on the increased or, as the case may be the deereased amount of subsistence allowance admissible under sub-clauses G) and GD ahove."
OA. No.613 /sogt item: Nia. 2tt oo g, In contrast, learned eounsel for respondents eas submitted that it is settled law that the provisions of F.R. 59 (1) de not have a retrospective revision, as contained in the Office Memoranda (O.Ms.) dated ros5.a058 and 19.09.1974, which clearly provide that there shall be no retrospectivity given in terms of the right of subsistence allowance. Thus, the respondents have stated that it is not admissible to revise the subsistence allowance with retrospective effect.
410. I have carefully considered the rival contentions of doth the parties and perused the material brought on record.
11. The facts of the case are not complicated rather they are straight and undisputed. The applicant was placed under suspension and the charge sheet levelling certain charges was issued. The inquiry and presenting officers were appointed and thereafter, the defence assistant was also appointed. Interestingly, the inquiry officer on 18.02.2020, ie., the first scheduled date, deferred the inquiry proceedings sine die. Since the inquiry proceedings could not be completed for the reasons best known to the respondents, the applicant prayed for enhancement of subsistence allowance by sending an email to the respondents, which when not responded to, led to filing of 10 OA, No.Gag/2021 O.A. No.210/2019 before this Tribunal. It was disposed of Oh 04,02.2021, directing the respondents to decide the pending representation of the applicant. In compliance of this direction, the respondents passed an order dated 19.03.2021, enhancing the subsistence allowance to 75% under F.R. 53 (1) read with F.R. 53 (2) for a period of 180 days beyond 21.03.2021 or till further orders, whichever is earlier, thus, accepting that the applicant is entitled to enhanced allowances. By way of instant O.A,, the applicant has prayed for enhancement of subsistence allowance after completion of 90 days of suspension order dated 01.07.2019, Le, from October, 2019 retrospectively.
ig. The respondents contended that F.R. 53 (1) nowhere _ stipulates that it is mandatory to either enhance or decrease the subsistence allowance soon after the first three months of suspension. Referring to O.Ms. dated 17.06.1958 and 13.09.1974, the argument of the respondents was that the Government does not consider it advisable that any orders revising the subsistence allowance should be given retrospective effect. It seems while denying retrospective enhancement of subsistence allowance, the respondents have not read full instructions and have read only one part of the O.M, The full O.M. dated 13.9.1974 reads as under:-
oer eats Vag SY OWA, No.b19/ade2 trem Nod "fe} Retrospective revision~ Government do not eonsider it advisable that any orders revising the subsistence allowance shonld be given retraspective effect.
The above is merely an advice of caution intended to serve as a guideline to the authorities ordering variation In subsistence allowance who are supposed to initiate action in all cases in sufficient time so that the requisite order ean take effect as soon as the suspended officer completes six Gnow three} months under suspension. Obviously the clarification above cannot override the power conferred by the statutory provisions of FR 59. In case an order for variation of subsistence allowance under FR 59 is passed by the competent (disciplinary or appellate) authority after quite some time from the expiry of the requisite six (now three} months and that authority is satisfied that the variation has got to be given retrospective effect for reasons to be recorded in writing and orders accordingly, the same would be valid and binding on all concerned."
{emphasis supplied} ig. A bare perusal of the aforementioned O.M. makes it clear there is no bar in enhancing the subsistence allawance with retrospective effect. It is only an advice or caution to the atthorities to take action in time, otherwise it is categorically stated that if authority is satisfied that subsistence allowance should be enhanced with retrospective effect, the said action would be valid. Even otherwise also, it is settled that if the reason of prolonging suspension is not directly attributable to the government employee, subsistence allowance should be enhanced. The respondents have themselves passed an order dated ee ted OA. No.gi3/2021 item No. 20 19.03.2021, enhancing the subsistence allowance to 75% under FLR. 53 G) read with F.R. 53 (2) for a period of 180 days beyond 21.03.2021 or Hl further orders, whichever is earlier. While exercising power under F.R. 53 (4) (a), the respondents have ignored the mandate of the Rules itself, which requires the competent authority to consider enhancement after completion of 90 days. Here the competent authority failed to consider enhancement at the time it was due and only considered the same in compliance of the Tribunal's direction in the first round.
iq. The respondents relied upon the decision of the Principal Bench of this Tribunal in Vipul Raj's case (supra). That was a case where the applicant was removed fram service and he filed an O.A. before this Tribunal, challenging the very action of the respondents. The O.A. was allowed and the impugned order of removal was quashed, The matter was carried to the Hon'ble High Court. There also, the order of the Tribunal was upheld and ultimately, on Contempt Petition being fled in the matter, the applicant was reinstated In service. He accordingly prayed for the subsistence allowanee for the period he remained under suspension. The Tribunal in the second round did not find favour with Vipul Raj and dismissed the O.A. on the ground that the Tribunal do not propose to go into the question as en Or a OVA. No.619/200! Hem No2o to how the applicant sustained himself and his family during the period he remained under suspension, as the same was beyond its purview. Here, the facts are different. The applicant is under continued suspension and the inquiry proceedings are on. Accordingly, the case cited by the respondents is not applicable to the facts of the case in hand. The facts mentioned in D R Nandakumar's (supra) are also distinguished to the facts narrated in the present nase, is. Tt is trite that the subsistence allowance is an allowance under which a particular percentage of the entire wage is provided to the workman by the employer during the period he is suspended from his employment due to an investigation pending against him for any misconduct or wrongful activities carried out by him. The allowance is paid in order to falfil his and his family's basic means of livelihood. The Hen'ble Supreme Court as well as various Hon'ble High Courts have adjudicated upon cases. involving 'subsistence allowance' and have considered it as a right of a workman under Article 21 of the Constitution.
16. Even otherwise, it is settled law that Executive instructions cannot amend or supersede the statutory Rules er add something therein. The orders cannot be issued in 4 | OA No.623/2021 Hem No.2d contravention of the statutory Rules for the reason that an ener nate! ES oe have any force of law; while statutory Rules have full force of law as held by the Constitution Bench of the Hon'ble Supreme Court in State of U.P. & others v. Babu Ram administrative instruction is not a statutory Rule, nor does it Upadhya, AIR 1961 SC 751. The law laid down above has consistently been followed and it is settled proposition of law that an Authority cannot issue orders/O.Ms./Executive ntion of the statutery Rules.
instructions in contrave However, instructions can be issued only to supplement the statutory Rules but not to supplant it. Such instructions should be subservient to the statutory provisions.
17, In this view of the matter, when the inquiry proceedings are adjourned side die on one occasion and not. concluded by now, the right of the applicant cannot be marred, Delay in initiation of inquiry proceedings and continued protraction by the authorities in culmination thereof is entirely attributable to the respondents.
18. Accordingly, in the totality of facts and circumstances of the case, the O.A. is disposed of and the order dated 19.03.2021, enhancing the suspension allowance from 50% 21.09.2021, is directed ta be treated to 75% weet.
retrospective, Le., effective from October, 2019 instead of ee rt fren No 20 OLA. No.G19/2024 ee S1,09.2021. The respondents are directed to release the nn s $ & a
3) arrears i 5 af <ore arrears due to said retrospective enhancement to the ap lee x, v1 eipt = applicant, within a period of three months from the da ate of of the certified copy of this order. It goes without saying th that the applicant would have to submit the certificate that he as not engaged in any other employment/ business/ profession or vocation during the period.
There shall be no order as to costs.
( Harvinder Kaur Oberoi ) Member G3 fsunil/ | | vat