Central Administrative Tribunal - Delhi
Vipul Raj S/O Sh. J.N. Sinha vs Indian Council Of Agriculture Research on 13 May, 2013
Central Administrative Tribunal Principal Bench OA No. 2720/2012 Reserved on: 17.04.2013 Pronounced on:13.05.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member(A) Vipul Raj s/o Sh. J.N. Sinha C/o Sh. N.K. Verma R/o F-211, Sector-3, Vaishali, Ghaziabad (UP) .Applicant (Applicant in person) Versus 1. Indian Council of Agriculture Research Through Secretary, ICAR Krishi Bhawan, Dr. Rajendra Prsasd Road, New Delhi. 2. Director General, Indian Council of Agriculture Research, ICAR Krishi Bhawan, Dr. Rajendra Prsasd Road, New Delhi. Respondents (By Advocate: Sh. Gagan Mathur) O R D E R By Dr. Birendera Kumar Sinha, Member (A):
By virtue of this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s):-
i) Direct the respondents to pay and subsistence allowance w.e.f. 08.08.2006 i.e. the date of suspension with interest;
ii) Set aside the Memo dated 19.07.2011.
2. Brief facts of the case would reveal that disciplinary proceedings were initiated against the applicant vide charge sheet dated 25.05.2004 on the allegation that while working as Administrative Officer, NIRJAFT, Kolkata, he demanded and accepted Rs.8,000/- as bribe from one Arunava Sanyal on 12.12.2002 for showing favour in issuing and delivering cheque towards his bill dated 25.10.2002 for repair of cabinet. The applicant was caught red handed by the CBI while demanding and accepting the bribe of Rs.8,000/- on 16.12.2002. On conclusion of the departmental proceedings, the applicant was awarded punishment of removal from service by the disciplinary authority vide order dated 08.08.2006. The applicant preferred an appeal against the order aforesaid and the same was rejected by the appellate authority vide order dated 03.01.2007. Thereafter, the applicant approached the Tribunal by filing OA No.237/2008 wherein he sought quashing of both the orders dated 08.08.2006 and 03.01.2007 passed by the disciplinary and appellate authorities, which was allowed by the Tribunal vide its order dated 20.04.2009 with the following directions:-
12. In the light of the above discussion, the OA succeeds. The order dated 8.08.2006 of the disciplinary authority and the order dated 3.01.2007 of the appellate authority are quashed and set aside. The Applicant shall be reinstated in the service forthwith. However, since we are quashing the impugned orders on technical grounds and since there is a charge of corruption against the Applicant, we are not giving any direction about consequential benefits, which shall abide by the result of fresh proceedings by the Respondents, which they are at liberty to continue, if so advised. However, the second Respondent is directed to approach the CVC and ask for furnishing detailed reasons for its advice, which may then be communicated to the Applicant in full, with opportunity to give representation in his defence. The disciplinary authority will pass final order after considering all aspects of the case. These directions will be complied with within six months from the date of passing of this order. Against the order of the Tribunal, the respondents filed Writ Petition (C) No.13106/2009 which was dismissed by the Honble High Court of Delhi upholding the order of the Tribunal with slight modification vide its judgment dated 13.09.2010, which reads as under:-
11. In view of the aforesaid, we find that the order passed by the Tribunal needs to be sustained with a small modification that it would not be necessary to send the matter again to CVC as directed by the Tribunal but what would be necessary would be to supply a copy of the CVC advice to the respondent and after receiving his comment, pass a fresh order regarding the penalty to be imposed, if any, upon the respondent by the disciplinary authority. In view of the aforesaid, the orders passed by the disciplinary authority as well as by the appellate authority are set aside while the order passed by the Tribunal in OA No. 237/2008 is modified to the extent as stated above.
3. When the order of this Tribunal affirmed by the Honble High Court was not implemented by the respondents, the applicant preferred a Contempt Petition. In the meantime, the respondents vide order dated 11.03.2011 (Annexure P-4) set aside the order of penalty of removal from service imposed on the applicant and reinstated him in service with further direction that proceedings against him shall continue from the stage of providing the CVC second stage advice to him. It is the case of the applicant that after reinstating him in service, no posting order was issued and rather just after three days he was put under suspension by the respondents vide order dated 14.03.2011 with retrospective effect i.e. 08.08.2006 under sub-rule (4) of Rule 10 of CCS (CCA) Rules, 1965. However, the applicant vide his letter dated 05.04.2011 requested the competent authority to release the subsistence allowance with effect from the date of suspension as per rules. In response to the representation of the applicant, he received a communication dated 19.07.2011 from the respondents informing him that his request to draw the subsistence allowance w.e.f. 08.08.2006 has not been acceded to and he is allowed to draw the same only w.e.f. 11.03.2011. Feeling aggrieved, the applicant made another representation dated 18.08.2011 followed by reminders dated 12.12.2011 and 04.05.2011 to the respondents against the communication dated 19.07.2011 stating therein that where a government servant is placed under suspension under sub-rule(4) of Rule 10 of CCS (CCA) Rules, 1965, the subsistence allowance is to be paid from retrospective effect i.e. the date of deemed suspension which in his case is 08.08.2006 and not 11.03.2011. Having received no response to any of his representations, the applicant has filed the present Original Application for the relief(s) as enumerated above.
4. The respondents have entered appearance and filed their counter affidavit wherein the facts of the applicants case have more or less been admitted insofar as the facts relating to the course of occurrence are concerned. However, insofar as issuance of posting order pursuant to reinstatement is concerned, the respondents have stated that the applicant was reinstated in service vide order dated 11.03.2011 and it was decided that he would be placed under deemed suspension under the provisions of Rule 10(4) of the CCS (CCA) Rules, 1965, therefore, giving him a posting did not arise. Insofar as the grant of subsistence allowance w.e.f. 11.03.2011 instead of 08.08.2006 is concerned, it is pleaded by the respondents that neither the Tribunal nor the Honble High Court has given any direction about giving the applicant any consequential benefit as a result of his reinstatement. It is to be deduced from the order of the Tribunal dated 20.04.2009 that payment of the consequential benefits has been left open dependent upon the result of fresh proceedings to be taken against the applicant. The applicant, therefore, has been allowed to draw subsistence allowance w.e.f. 11.03.2011 which of course shall be subject to decision in fresh proceedings which are still pending. The respondents have further contended that representation dated 18.08.2011 is similar to that of 05.04.2011 which has already been considered by the competent authority and disposed of vide order dated 19.07.2011. However, insofar as representation dated 12.12.2011 relating to increase of subsistence allowance is concerned, they have passed order dated 27.11.2012 whereby subsistence allowance pertaining to the applicant has since been increased by 50% of the initial allowance. Hence, the applicant has no case whatsoever and the present Original Application deserves to be dismissed.
5. We have carefully considered the arguments advanced, documents adduced and oral submissions made by respective counsels and on the basis thereof following issues, being germane to the outcome in this OA, need to be decided at the first instance:-
Whether the applicant is entitled within the terms of the order of this Tribunal dated 20.04.2009 to receive the suspension allowance with effect from the date of his suspension i.e. 08.08.2006;
Whether the payment of suspension allowance is a part of the consequential benefits as directed in the Tribunals order dated 20.04.2009?
What relief, if any, can be provided to the applicant?
6. Insofar as the first issue is concerned, the applicant has based his arguments on three counts documents namely (i) the provisions of FR 53(1)(ii)(a) and (b); (ii) OM of the Government of India dated 29.08.1963; and (iii) the provisions of FR 53 (f). Here certain facts are admitted and need not to be proved that as per the FIR instituted by the CBI, the applicant, while working as Administrative Officer, NIRJAFT, Kolkatta, was apprehended red handed by the CBI demanding and accepting the bribe of Rs.8,000/- on 16.12.2012; the applicant was departmentally proceeded against and had been ordered to be removed from service vide order dated 08.08.2006 with immediate effect; the applicant challenged the order in this Tribunal by way of OA No.237/2008 which was allowed by the Tribunal vide its order dated 20.04.2009 on technical grounds and directed the disciplinary authority to approach the CVC with a request to furnish detailed reasons for its advice, which may then be communicated to the applicant in full, with opportunity to give representation in his defence; the respondents approached the Honble High Court of Delhi in WP(C) No.13106/2009 in which the order of the Tribunal dated 20.04.2009 was sustained with a small modification to supply a copy of the CVC advice to the applicant and after receiving his comments, pass a fresh order regarding penalty to be imposed, if any, upon the applicant by the disciplinary authority. Since the entire argument of the applicant takes birth from the order of this Tribunal dated 20.04.2009, the same needs to be reproduced hereunder:-
16. In the light of the above discussion, the OA succeeds. The order dated 08.08.2006 of the disciplinary authority and the order dated 03.01.2007 of the appellate authority are quashed and set aside. The applicant shall be reinstated in the service forthwith. However, since we are quashing the impugned orders on technical grounds and since there is a charge of corruption against the applicant, we are not giving any direction about consequential benefits, which shall abide by the result of fresh proceedings by the respondents, which they are at liberty to continue, if so advised. However, the second respondent is directed to approach the CVC and ask for furnishing detailed reasons for its advice, which may then be communicated to the applicant in full, with opportunity to give representation in his defence. The disciplinary authority will pass final order after considering all aspects of the case. These directions will be complied with within six months from the date of passing of this order. In this very regard, it is also necessary to look at the modification as ordered by the Honble High Court of Delhi vide its order dated 13.09.2010 in WP(C) No.13106/2009, which reads as under:-
11. In view of the aforesaid, we find that the order passed by the Tribunal needs to be sustained with a small modification that it would not be necessary to send the matter again to CVC as directed by the Tribunal but what would be necessary would be to supply a copy of the CVC advice to the respondent and after receiving his comment, pass a fresh order regarding the penalty to be imposed, if any, upon the respondent by the disciplinary authority. In view of the aforesaid, the order passed by the disciplinary authority as well as by the appellate authority are set aside while the order passed by the Tribunal in OA No.237/2008 is modified to the extent as stated above. The only modification which has been made by the Honble High Court of Delhi in the order of Tribunals order dated 20.04.2009 was that there was no need for the respondent-department to approach the CVC again and it would suffice if a copy of the advice tendered by the CVC is provided to the applicant. The disciplinary authority was empowered to pass a fresh order regarding the penalty to be imposed, if so required, upon the applicant. This modification is not of any consequence to the prayer made and the issues germane to this case. Hence, it is not taken into reckoning in the remaining part of the order.
7. Insofar as OM dated 29.08.1963 of the GOI is concerned, it provides as under:-
(3) Subsistence Allowance- (a) Initial grant. A Government servant under suspension is entitled to subsistence and other allowances from the date and during the period of suspension under the statutory provision of FR 53.
The subsistence allowance shall not be denied on any ground unless a Government servant is unable to/does not furnish a certificate that he is not engaged in any other employment, business, profession or vocation, during the period of suspension.
(b) Payment of Each claim for subsistence and compensatory allowance should be supported by a certificate by the Government servant concerned to the effect that he was not engaged in any employment, business, profession or vocation, during the period to which the claim relates. This OM provides that subsistence allowance from the date and during the period of suspension is an entitlement created from provision of FR 53. It is a requirement under FR 53(3)(a) that subsistence allowance shall be made where the government servant has not taken up an alternative employment during the period under suspension and furnishes a certificate to the effect that he has is not engaged in any other employment, business, profession or vocation.
8. In this regard, it is also necessary to look at the provisions of FR 53(1)&(2), which are reproduced hereunder:-
F.R.53(1) 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:-
(i) in the case of a Commissioned Officer of the Indian Medical Department or a Warrant Officer in Civil employ who is liable to revert to Military duty, the pay and allowances to which he would have been entitled had be been suspended while in military employment.
(ii) in the case of any other Government servant-
(a) a subsistence allowance at an amount equal to the leave salary which the Government 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:-
the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 per cent 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;
the amount of subsistence allowance, may be reduced 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 due to reasons, to be recorded in writing, directly attributable to the Government servant;
the rate of dearness allowance will be based on the increased or, as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above.
(b) Any other compensatory allowances admissible from time to time on the basis of pay of which the Government servant was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances.
(2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation:
Provided that in the case of a Government servant dismissed, removed or compulsorily retired from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement, under sub-rule (3) or sub-rule(4) of Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods, as the case may be, fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him; where the subsistence allowance and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this proviso shall apply to him.
9. From a plain reading of this FR, it would appear that it is applicable to such government servants, who have either been placed under suspension or deemed to have been placed under suspension by an order of the appointing authority. The scales have been provided for payment of the subsistence allowance @ 50% as if he had been on leave on half average pay or on half pay with dearness allowance, if admissible on the basis of such leave salary. Where the suspension is continued beyond a period of three months, the subsistence allowance would be admissible at a higher scale and could also be reduced under provision of FR 53(a)(ii).
10. What is under challenge in the instant Original Application is the order dated 14.03.2011, the contents of which are reproduced hereunder:-
MEMORANDUM WHEREAS disciplinary proceedings as for a major penalty under Rule 14 of the CCS (CCA) Rules were initiated against Shri Vipul Raj, Ex. Administrative Officer, CMFRI, Cochin vide Memorandum dated 25.05.2004 which resulted into culmination of the imposition of penalty of removal from service against him vide order dated 08.08.2006;
WHEREAS on the directions of the Honble High Court, New Delhi the above said punishment order dated 08.08.2006 has been set aside by the disciplinary authority vide order dated 11.03.2011;
WHEREAS the disciplinary authority, in compliance of the directions given by Honble High Court, New Delhi vide order dated 13.09.2010, has decided that a copy of the CVC second stage advice dated 31.07.2006 may now be provided to Shri Vipul Raj and final order will be passed by the disciplinary authority in his case after receiving his submission, if any;
NOW THEREFORE, the Director General, ICAR in exercise of powers conferred by sub-rule (4) of the Rule 10 f the Central Civil Services (Classification, Control and Appeal) Rules, 1965 hereby places Shri Vipul Raj under deemed suspension w.e.f. the date of order of removal from service passed against him i.e. 08.08.2006. However no back wages for the period prior to the date of reinstatement in service i.e., 11.03.2011 will be paid to Shri Vipul Raj as per the order dated 20.4.2009 of Honble CAT and order dated 13.09.2010 of Honble High Court, New Delhi;
It is further ordered that during the period that this order shall remain in force the Hqrs of Shri Vipul Raj shall be Cochin and the said Shri Vipul Raj shall not leave the Hqrs without obtaining the previous permission of the competent authority.
Sd/-
(V.D.Naniwadekar) Under Secretary (Vig.) For an on behalf of Director General, ICAR
11. Reverting to the operative part of the Tribunals order dated 20.04.2009 passed in OA No. 237/2008, the Tribunal had been at pains to emphasize that the impugned order of removal from service dated 08.08.2006 was being quashed only on a technical ground. The second thing that the Tribunal has emphasized is that there is a charge of corruption against the applicant and it was on this account that no direction was being given regarding the consequential benefits and, therefore, the same was made subject to the outcome of the fresh proceedings by the respondents. The respondents were given the liberty to continue with the proceedings after having provided a copy of the advice of the CVC. As noted above, this order of the Tribunal dated 20.04.2009 has been modified to a limited extent which is not of any consequence for the purpose of deciding the issues in the instant Original Application. Therefore, it becomes plain from the above discussion that this Tribunal was acutely aware of the grave nature of the charges but was constrained by technical flaws in the impugned order to quash the same. At the same time, it never intended that the consequential benefits should flow to the applicant. It had also given liberty to the respondents to continue with the departmental proceedings after having cured the defect on the basis of which order was being quashed.
12. The reinstatement of the applicant has been made under the provisions of Rule 10(3) & (4) of the CCS (CCA) Rules, 1965. Rule 10(3), inter alia, provides that in such instances where the penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force, on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. In the next provision i.e. Rule 10(4), this position has been reiterated with a proviso that there shall be no further inquiry unless ordered by the court having passed the said order only on technical ground without having gone into the merit of the case. For the sake of better elucidation, it is necessary to reproduce the provisions of Rule 10(3) & (4) hereinbelow:-
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government Servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government Servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government Servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders :
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
13. From the above examination, it clearly emerges that where reinstatement is ordered under the provisions of Rule 10(3) and/or 10(4), the government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. However, the fact remains that the applicant was out of service from 08.08.2006 till he was reinstated vide order dated 14.03.2011. The subsistence allowance is paid on a reduced scale to the suspended employee under the provision of FR 53 as cited above for the purposes of maintaining the family.
14. Now we take a position as to what would happen where a person was out of service during this period. The order dated 14.03.2011 clearly goes ahead to indicate that the back wages for the period prior to the date of reinstatement i.e. 11.03.2011 will not be paid to the applicant in terms of the order dated 20.04.2009 of the Tribunal and the order dated 13.09.2010 of the Honble High Court of Delhi. A question that we require to deal with is that whether it would apply to the subsistence allowance also. At present the subsistence allowance is being paid from the date of reinstatement i.e. 11.03.2011 and is not being paid from 08.08.2006. As submitted by the learned counsel for the respondents, the answering authorities have included the payment of subsistence allowance as a part of the consequential benefits. They have interpreted that what has been ordered by the Tribunal is that since the order of the disciplinary authority dated 08.08.2006 is being set aside on technical reasons, the consequential benefits should not flow to him and would be dependent upon the result of the fresh inquiry. Considering the nature of the subsistence allowance, if the Tribunal was to allow the payment of subsistence allowance from 08.08.2006, it would be included within the terms consequential benefits. It also remains a fact that the applicant has maintained himself and his family and there is no averment whatsoever on record regarding any hardships suffered by him while he was out of service. We do not propose to go into the question as how the applicant sustained himself and his family during this period as the same would be clearly beyond the purview of this Tribunal. However, what we propose to go into is the simple issue that whether the applicant is entitled to the payment of subsistence allowance from 08.08.2006 to 11.03.2011. Here, since the purpose of subsistence allowance has already been fulfilled otherwise and the family of the applicant has subsisted, the Tribunal is safe in inferring that it is not necessary for sustenance during that period. The next question that attracts our immediate attention is that what would happen in departmental proceedings. There are only two possibilities either the punishment of the applicant will be maintained or enhanced. Meaning to say that either the punishment of removal from service w.e.f. 08.08.2006 would have been upheld or the applicant would be given some other punishment other than removal from service with directives regarding the arrears of pay. The applicant in the latter case would become entitled to subsistence allowances or back wages on such terms as would be directed by the disciplinary authority. Till so long that does not take place, it is the intention of this Tribunal that the order under reference dated 08.08.2006 should be left as it is and should only be taken up when the issue is finally decided.
15. Coming to the Issue No.2, a part of it has already been discussed in relation to first issue. The provisions of FR 53 do not have a retrospective revision as contained in the OMs dated 17.06.21958 and OM dated 13.09.1963. These OMs clearly provide that there shall be no retrospectivity given in terms of the right of the subsistence allowance. In other words, what has been provided is that it shall not be revised with retrospective date. The corollary is that what has not been provided has not been provided and it shall not have any retrospective effect. The same would also hold good to the facts of the instant case.
16. This Tribunal vide its order dated 20.04.2009 did not intend that back wages from 08.08.2006 till 11.03.2011 should be provided at the first instance and has been left it to the decision in the fresh departmental proceedings and the revised order to be issued by the disciplinary authority following the cured proceedings. Therefore, we clearly find that the subsistence allowance also comprises, in the facts peculiar to the instant case, as a part of the consequential benefits and is not at a stand-alone basis.
17. In so far as the third issue is concerned, we have taken note of the first two issues which have been answered in negative contrary to the prayer made in the instant OA. On the basis of the decisions in respect of the first two issues, the issue of payment of back wages from 08.08.2006 is ruled out and it is left for the determining authority to pass a final order in which they will also pass an order relating to the subsistence allowance relating to the period for which the applicant was out of service.
18. In totality of the facts and circumstances of the case and in view of our above observations, we find this Original Application lacks merit and the same is accordingly dismissed without there being any order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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