Central Administrative Tribunal - Hyderabad
Md Khaleem Ahmed vs Dept Of Posts on 25 June, 2019
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH: HYDERABAD
Original Application No.21/248/2018
Date of Order: 25.06.2019
Between:
Md Khaleem Ahmed, Gr-D
S/o Late Niranjan Ahmed
Aged 54 years Occ: Group-D (Comp retired)
Nagarkurnool SO
Wanaparthy Division
Wanaparthy District, (T.S). ... Applicants
AND
1. Union of India, rep by
The Chief Postmaster General, TG Circle
Hyderabad - 500 001, (TS)
2. The Postmaster General
Hyderabad Region, Hyderabad - 500 001(TS).
3. The Superintendent of Post Offices
Wanaparthy Division
Wanaparthy District (TS). ... Respondents
Counsel for the Applicant ... Mr. B. Guru Das.
Counsel for the Respondents ... Mrs. B. Gayatri Varma, Sr. PC for CG
CORAM:
Hon'ble Mr. B.V. Sudhakar, Member (Admn.)
OA No.248/2018
2
ORDER
{As per Hon'ble Mr. B.V. Sudhakar, Member (Admn.) }
2. OA is filed for enhancement of subsistence allowance.
3. Brief facts of the case are that the applicant, while working for the respondents organisation as Night Watchman at Jadcherla Head Post Office, was placed under suspension on 27.6.2012 for alleged theft of Govt. records. Charge sheet was issued on 24.7.2012 and penalty of compulsory retirement was imposed on 3.3.2014. Applicant represented for increase of subsistence allowance as per FR -53 on 27.4.2017, which was rejected on 24.8.2017. Aggrieved, the instant OA has been filed.
4. The contentions of the applicant are that he was unnecessarily kept under suspension despite issue of charge sheet and transferring him from Jadcherla to Nagarkurnool in order not to tamper with the relevant records. Order of suspension was not served on him. As per FR 53 (1) (ii) (a) (i), he is eligible. Applicant cited the verdicts of this Tribunal, in support of his plea for enhancement of subsistence allowances.
5. Respondents confirm that the applicant was proceeded for alleged theft of Government records and kept under suspension on 27.6.2012. Suspension was continued, from time to time, based on the recommendations of the OA No.248/2018 3 Suspension Review Committee. Sanction for payment of subsistence allowance was issued on 30.10.2012 and endorsed to the applicant. Suspension review committee has not recommended revision of subsistence allowances whenever it reviewed the suspension. Charge sheet was issued under Rule 14 and the applicant was compulsorily retired on 03.03.2014 treating the period of suspension as such. Applicant represented belatedly after 3 years of imposition of penalty for enhancement of allowances on 27.4.2017 which was rejected as his disciplinary case was already closed. Applicant did not appeal to the appellate authority against the suspension. Applicant represented to pardon him for the mistake and requested that he be transferred to any other office and accordingly posted to Nagarkurnool. It is the discretion of the respondents to review and revise the subsistence allowance, depending on the facts and nature of the misconduct.
6. Heard both the counsel and perused the documents placed on record.
7. I) Applicant has been granted subsistence allowance on 30.10.2012 and it was not revised till the date of imposition of penalty of compulsory retirement. The nomenclature of subsistence allowance makes it abundantly clear that it is an allowance granted during suspension to subsist himself and his family to survive and also to be able to appear in the disciplinary proceedings initiated by the respondents. Generally, grant of subsistence OA No.248/2018 4 allowance has to be reviewed periodically. Respondents did not submit any record substantiating the fact that they have reviewed the grant of subsistence allowance. It would not do to state that, it was reviewed and a copy was endorsed to the applicant. Usually respondents use registered post to deliver any communication to keep a record of proof as to whether the communication was received by the applicant. No such proof was enclosed. The applicant cooperated with the respondents in the culmination of the disciplinary proceedings and he cannot be held responsible for prolonging the suspension. In such circumstances FR 53 (1) ii (a) (i), extracted hereunder comes into play.
" i) the amount of subsistence allowance may be increased by a suitable amount not exceeding 50% 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 Govt. Servant."
II) Respondents have not let in any documentary evidence stating that subsistence allowance was reviewed and reasons were recorded attributing the prolonged suspension to the applicant. In the absence of such record being produced by the respondents, it has to be necessarily concluded that the applicant is eligible for review of subsistence allowance. OA No.248/2018 5
III) Tribunal draws support in making the above assertion based on the observation of the Hon'ble Supreme Court in P.L Shah v Union of India & and Another, reported in 1989 AIR 985 = 1989 SCR (1) 224 = 1989 SCALE (1) 81, wherein it was held as under:
"If the Government servant is not responsible for such delay or even if he is responsible for such delay to some extent but is not primarily responsible for it, it is for the Govt. to reconsider whether the order of suspension should be continued or whether the subsistence allowance varied to his advantage or not."
As was expounded in paras (supra), respondents have the discretion to review and decide the subsistence allowance. However, they have to come out clear as to why subsistence allowance could not be revised either way. Woefully, such reasons are not to be seen in the present case.
IV) One another candid observation of the Hon'ble Apex Court made in B. K. Shetty Vs. Ceat Ltd., (2002) 1 SCC 193, the relevant part of which is extracted hereunder, clinches the issue:
"It appears, reference to the delay directly attributable to the conduct of the workman in the said provision is obviously to the one where the workman unjustifiably, deliberately or designedly drags on or prolongs the domestic inquiry. To put it in other way, a workman cannot be permitted to take advantage of delay caused by himself in the absence of any order passed by a court. If such a delay is also to be taken as covered by Section 10-A(1)(b) it may amount to in a way putting restraint or clog on the exercise of legal right of a workman to approach a court of law out of fear of losing subsistence allowance at the rate of 75%. It is one thing to say that in a given case there should be no stay of disciplinary proceedings. It is another thing to say that in case stay is granted there will be delay in completion of disciplinary proceedings, which is directly attributable to the conduct of a workman. Merely because legal proceedings will be pending in a court or before other authority and they take some time for disposal, maybe inevitably, that itself cannot be a ground to deny subsistence allowance to a workman OA No.248/2018 6 against a statutory obligation created on the employer under Section 10-A(1)(b). One must not lose sight of the fact that the Act is a beneficial piece of legislation and the provision of subsistence allowance made is intended to serve a definite purpose of sustaining the workman and his family members during the bad time when he is under suspension, pending inquiry. This provision is enacted with a view to ensure social welfare and security. Hence, such a beneficial piece of legislation has to be understood and construed in its proper and correct perspective so as to advance the legislative intention underlying its enactment rather than abolish it. Assuming two views are possible, the one, which is in tune with the legislative intention and furthers the same, should be preferred to the one which would frustrate it.
Therefore, the beneficial content of the FR 53 should not be obliterated by not pronouncing the reasons as to whether the applicant was responsible for the delay in completion of the disciplinary proceedings.
V) It needs also to be reiterated that reduced payment of subsistence allowance is a continuous cause of action. Therefore, there is no time limit to agitate on such an issue. Just because the applicant could pull along for some years with 50 percent subsistence allowance, it would not mean that he was well off. One does not know as to whether he has raised loans to support himself and his family when the respondents did not come to his rescue.
Besides, the applicant is from the lowest rung of the bureaucracy and would obviously not be fully aware of the rules, unless someone guides him. Therefore, the delay in claiming the revision of subsistence allowance cannot be held against him.
VI) Lastly, the impugned order is neither a speaking or reasoned order. It does not give reasons for the basis of rejection. Therefore, it is legally OA No.248/2018 7 invalid. Respondents cannot improve the Impugned order in the reply statement.
VII) Therefore, in view of the aforesaid , action of the respondents is arbitrary and not in accordance with the principles laid down by the Hon'ble Supreme Court stated supra. Applicant made out a case, which fully succeeds. Therefore, impugned order is quashed. Consequently, respondents are directed to consider as under:
i) To suitably revise the subsistence allowance from the date of first review undertaken to examine revision of subsistence allowance by the respondents, as per extent rules and regulations.
ii) Pay the arrears of subsistence allowance after revising the subsistence as at (i)
iii) Time calendared to implement the judgment is 3 months from the date of receipt of a copy of this order.
iv) No order as to costs.
With the above directions the OA is allowed.
(B.V. SUDHAKAR)
MEMBER (ADMN.)
Dated, the 25th day of June, 2019
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