Central Administrative Tribunal - Bangalore
G Nijaguna vs Labour on 5 January, 2023
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OA.No.170/00189/2016/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00189/2016
DATED THIS THE 05TH DAY OF JANUARY, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
G. Nijaguna
S/o late Shri N. Gurumurthy,
Aged about 56 years,
Worked as U.D.C. at the office of
The Regional provident fund commissioner,
Bangalore, R/o No. HIG, 97, KHB,
Sun City Road, Kengeri Satellite town,
Bangalore - 560 060. .... Applicant
(By Shri A.R. Holla, Advocate)
Vs.
1. Union of India,
Represented by Ministry of Labour,
Shram Shakti Bhavan,
Rafi marg, New Delhi - 110 001.
2. The Regional Provident Fund Commissioner Grade-1,
No. 13, Rajaram Mohan Rai Road,
Bangalore - 560 025.
3. The Regional Provident Fund Commissioner Grade-1,
Bhavishyanidhi Bhavan, Aland Road,
Gulbarga - 585 101.
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4. The Additional Central Provident Fund Commissioner,
Kaveri Bhavishya Nidhi Enclave, HMT main road,
Bangalore - 560 013. ....Respondents
(By Shri P. Saravana, Advocate for Respondents No.2 to 4)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"Issue appropriate writ or order or direction, setting aside the order bearing No. KN/PF/RO/GLB/Adm/2015-156 dated 28.05.2015 passed by Respondent No. 3 (Annexure-A11) and order No. KN/GLB/RO/Adm/2015- 16 dated 05.08.2015 passed by Respondent - 3 (Ann- A14) and to grant time bound promotion, Special pay from 20.04.99, promotion to the post of Supervisor Sept 2000 and also refix the subsistence allowance and pay as per revised pay scale as per 6th pay commission from 01.01.2006 till 01.05.2014 with grant all consequential benefits in the interest of justice and equity."
2. However, the applicant has now restricted the relief inasmuch as re-fixing the subsistence allowance and pay as per 3 OA.No.170/00189/2016/CAT/BANGALORE revised pay scale as per 6th Pay Commission from 01.01.2006 to 01.05.2014 as submitted by learned counsel Shri A.R. Holla appearing for the applicant.
3. Briefly stated the facts as stated by the applicant are that he was appointed as LDC w.e.f. 20.04.1982 and subsequently promoted as Upper Division Clerk in the year 1985. While working as Upper Division Clerk, disciplinary proceedings were initiated against the applicant and one Shri Vijayakumar, which culminated in the order of penalty of compulsory retirement from service with respect to the applicant and the order of penalty of stoppage of one increment without cumulative effect in respect of Shri Vijayakumar. Aggrieved by the order of penalty, the applicant had preferred an appeal before the Appellate Authority who modified the penalty order to that of reduction in rank i.e. that the applicant was reduced in rank from Upper Division Clerk to Lower Division Clerk. Being aggrieved, the applicant preferred OA No. 140/2008 before this Tribunal. The Tribunal confirmed the order passed by the Appellate Authority vide order dated 28.06.2010. Being aggrieved, the applicant preferred Writ Petition No. 23616/2010 before the Hon'ble High Court of Karnataka which 4 OA.No.170/00189/2016/CAT/BANGALORE was allowed quashing the order dated 28.06.2010 passed by this Tribunal and the orders of the Disciplinary Authority as well as the Appellate Authority insofar as they relate to imposition of penalty of reduction in rank of the applicant and the penalty order was modified. The applicant was imposed with penalty of reduction of one increment for one year without cumulative effect. The applicant was kept under suspension from 27.12.1999 to 10.08.2006. It is the claim of the applicant that he is entitled to subsistence allowance as per 6th Pay Commission revised pay scale. The order of suspension was revoked on 16.05.2011 and the applicant was posted to Gulbarga. However, the applicant has not reported to duty and sought for retention at Bangalore as per the conditions imposed in the bail in Criminal Case as he could not leave headquarters and subsequently he was dismissed from service as per order dated 01.05.2014 for misconduct.
4. It is the grievance of the applicant that though the pay scale to the post of UDC was revised as per 6th Pay Commission from 01.01.2006 to Rs.4860-20200/-, the applicant has not been paid revised subsistence allowance during suspension period from 01.01.2006 till 01.05.2014 in the said pay scales. 5
OA.No.170/00189/2016/CAT/BANGALORE
5. Learned counsel Shri A.R. Holla representing the applicant fairly submitted that the applicant is not pressing the other reliefs claimed in the application since the same depends on the outcome of the pending criminal appeals. As such, this application is now restricted only to the claim of subsistence allowance as per revised pay scales of the 6th Pay Commission in the UDC post from 01.01.2006 till 01.05.2014. Thus, the learned counsel argued that the application deserves to be allowed in this respect.
6. Learned counsel Shri Saravana representing the respondents referring to the reply statement filed on behalf of the respondents submitted that the order passed by the Hon'ble High Court of Karnataka in Writ Petition No. 23616/2010 was implemented. Subsistence allowance of Rs. 2,75,891/- for the period from 07.08.2003 to 10.08.2006 has been paid at the UDC scale of pay. Further, the difference amount of subsistence allowance amounting to Rs. 27,928/- for the period from 11.08.2006 to 16.05.2011 has also been paid at the UDC scale of pay after withholding one increment. Learned counsel further 6 OA.No.170/00189/2016/CAT/BANGALORE argued that a government servant under suspension shall continue to draw subsistence allowance on the existing scale of pay and his pay in the revised pay structure will be subject to the final order on the pending disciplinary proceedings. The applicant after revocation of suspension has not at all reported for duty. Subsequently, he was dismissed from service. Hence, the application being devoid of merit deserves to be rejected. In support of his contentions, learned counsel has placed reliance on the judgment of the Hon'ble High Court of Delhi in the case of Union of India and Others vs Devi Krishan Sharma in Writ Petition (C) No. 2449/2014 (DD 16.11.2015).
7. We have carefully considered the rival submissions made by the learned counsel for the parties and perused the material on record.
8. The sole question that arises for our consideration is whether the applicant is entitled to the subsistence allowance as per the pay scale which was in force on the date of suspension or on the basis of revised pay scale?
9. This issue is no more res integra in view of the law enunciated by the Hon'ble Apex Court in the case of Union of 7 OA.No.170/00189/2016/CAT/BANGALORE India vs R.K. Chopra (2010) 2 SCC 763, wherein the Hon'ble Apex Court dealing with the case of denial of demand of suspended employee inasmuch as revision of subsistence allowance based on the pay revision coming into effect during the suspension period held 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 but if the revision of 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. This judgment has been followed by the Hon'ble High Court of Delhi in Devi Krishan Sharma, supra. FR 53 which deals with entitlement of a government servant under suspension also has been referred to.
10. In the light of the aforesaid judgments, it is clear that the benefit of revision of pay and the subsistence allowance would accrue to the applicant only after reinstatement, depending on the fact whether the period of suspension is treated as duty or not. Undisputedly, the applicant has not reported to duty after revocation of suspension.
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OA.No.170/00189/2016/CAT/BANGALORE
11. It is also not in dispute that CBI has filed chargesheet in Spl. C.C. No. 137/2000 before the XXI Additional City Civil and Sessions Judge, Bangalore against the applicant and the charges alleged having been proved, the applicant was convicted on 14.08.2012 under Section 420, 468 and 473 of IPC and Sections 13(2) read with Section 13(1)(d) of the PC Act, 1988. The Disciplinary Authority, under Rule 10 of EPF (Staff) CCA Rules, 1971, has passed an order of penalty of dismissal from service to the applicant on 01.05.2014. Relating to the criminal matter, the appeal is said to be pending before the Hon'ble High Court of Karnataka. However, the claim being now confined to the payment of subsistence allowance in terms of the revised 6th Pay Commission pay, the same being covered by the judgment of the Hon'ble Apex Court referred to supra, we find no merit in this application.
10. In the result, OA stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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