Central Administrative Tribunal - Delhi
Ravinder Kumar vs M/O Home Affairs on 19 January, 2016
Central Administrative Tribunal
Principal Bench
RA No.308/2015
In
OA No. 4440/2013
Order Reserved on:05.01.2016
Order Pronounced on: 19.01.2016
Hon'ble Mr. Justice Syed Rafat Alam, Chairman
Hon'ble Dr. Birendra Kumar Sinha, Member (A)
Shri Ravinder Kumar
s/o Late (Capt.) Jai Pal Singh,
R/o Bungalow No.15, Railway Officers' Enclave,
S.P. Marg, Chanakyapuri,
New Delhi-110021 ...Review Applicant
(Applicant in person)
Versus
1. Union of India through the Home Secretary,
Government of India,
North Block, Central Secretariat,
New Delhi-110001
2. State of Himachal Pradesh,
Through the Secretary (Home)
Government of Himachal Pradesh,
Shimla-171002. ...Respondents
(By Advocates: Shri P.K. Singh for Sh. Rajeev Kumar)
ORDER
By Dr. B.K. Sinha, Member (A):
The instant Review Application has been filed by the applicant under Section 22(3)(f) of the Administrative Tribunals Act, 1985, principally raising three grounds for review of the Tribunal's order dated 01.09.2015 in OA No. 4440/2013. In the first instance, the applicant has argued 2 that in the last sentence of para 14 of the order, the Tribunal has recorded "...Therefore, for the harassment caused to the applicant, he needs to be compensated in the form of cost quantified at Rs.10,000/- which will be sufficient in view of the fact that he has not engaged any advocate for redressal of his grievance." However, in the operative portion of the order i.e. in para no.16, no cost has been ordered. This is an error apparent on the face of the record. Once it has been held that the applicant needs to be compensated, the order under review needs to be modified with a direction to the respondents to pay the cost of Rs. 10,000/- to the applicant, to which the learned proxy counsel for respondents appears to have no objection.
2. In the second instance, the applicant submits that he raised a legal issue before the Tribunal regarding Rule 5A (2)(i) of the All India Services (Disciplinary & Appeal) Rules, 1969 laying down the procedure for passing an order to regularize and fix the pay and allowances for the period of deemed suspension. The contention of the applicant is that once he had been reinstated under the Tribunal's orders dated 23.05.2012 in OA No.313/2010, the respondents were bound to act under the provisions of sub-rule (5) of Rule 5 of the Rules ibid.
3
3. We also find that in para 11 of the order, the provisions of the Rule 54A (2) (i) and (ii) relating to issue of subsistence allowances and Rule 54 (5) and 54(7) have also been dealt with in detail. However, the submission of the applicant seems to be true that the Tribunal while disposing of the OA, vide order dated 01.09.2015 has not adjudicated upon this issue. This anomalous situation has arisen because in the prayer clause (b) of para 8 of the OA [para 2(b) at page 3 of the order], the applicant has not specifically asked for this relief. For the sake of clarity, para 2 (b) reads as under:-
"b) Direct respondent no.1 to release the subsistence allowance to the applicant that is legally due to him since 23.05.2012 - the date on which this Ld. Tribunal reinstated him in service (Annexure A-4), for the correct deemed suspension period (i.e. from 23.08.2009 till 22.05.2012) in accordance with rule 4 of the AIS (D&A) Rules, 1969."
4. It remains a fact that the relief, which has not been specifically asked for, cannot be granted. However, the applicant submits that under prayer clause 2(e), the relief could have been provided to him. For this, we straightway reproduce the provisions of Rule 5A (1), (2) & (3) of All India Services (Discipline & Appeal) Rules, 1969 as under:-
"5-A. Admissibility of pay and allowances and treatment of service on reinstatement where dismissal, removal or cumpulsory retirement is set aside by a Court of law.
(1) Where the dismissal, removal or compulsory retirement of a member of the Service is set aside by a Court of Law and such member is reinstated without holding any further inquiry the period of absence from duty shall be regularised and the member of the service shall be paid, pay and allowances, in accordance with the provisions of 4 sub-rule (2) or (3) subject to the directions if any, of the Court.(2)
(i) In cases other than those covered by sub-
rule (3), the member of the service shall be paid such proportion of the full pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the authority competent to order reinstatement may determine, after giving notice to the member of the service of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within 60 days from the date on which the notice aforesaid is served on the member of the Service:
Provided that payment under this sub-rule to a member of the Service shall neither be equal to the full pay and allowances nor less than the subsistence allowances and other allowances admissible under Rule 4 as the case may be.
(ii) The period intervening between the date of the dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularised in accordance with the provisions contained in sub-rule (5) of Rule 5. (3) Where the dismissal, removal or compulsory retirement of a member of the Service is set aside by a Court on the merits of the case, or where the dismissal, removal or compulsory retirement of a member of the Service is set aside by a Court solely on the ground of non-compliance with the requirement of clause (1) or clause (2) of Article 311 of the Constitution and no further enquiry is proposed to be held, the period intervening between the date of dismissal, removal or compulsory retirement as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid full pay and allowance for the period to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement as the case may be."
Rule 5(5) further provides that -
"(5) Any payment made under this rule to a member of the service on his reinstatement shall be 5 subject to adjustment of the amount. If any, earned by him through an employment during the period between the dismissal, removal or compulsory retirement and the date of reinstatement. Where the pay and allowances admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the member of the Service."
5. It is evident from the above that the cumulative effect of these provisions is to provide procedure by which the period between the date of dismissal/removal or compulsory retirement including that of suspension, preceding such dismissal/removal/ compulsory retirement is to be treated. We are of the opinion that in a review application no order can be passed for payment of such allowances particularly in the light of the fact that it has not been specifically prayed for. However, we do not find any such consideration on record which ought to have been done following this procedure. Therefore, it is for the applicant to submit a representation before the competent authority for this purpose.
6. In regard to the payment of interest @ 6%, the applicant submits that he had to borrow money from his close relatives @ 12% - 24% interest per annum for the marriages of his son and daughter and birth ceremony of his grandson. He further submits that had he taken the personal loan from bank, he would have to pay the minimum interest @ 12% per annum, and, therefore, he ought to have been awarded at least the interest at the same 6 rate i.e. @ 12% per annum. This matter has been discussed at length in para no.14 of the order and it has been made plain therein that interest of 6% would be sufficient. Moreover, the cost awarded to a party by the Tribunal is the cost on the Government. Therefore, there was good reason of not enhancing the cost as the same cannot be done in a review. Hence, it may form a good ground of appeal but certainly not of review application. We, therefore, feel that there is no need to depart from our previous order dated 01.09.2015 under review.
7. In view of the above discussion, we partly allow the review application with the following directives:-
1. The respondents are directed to pay the cost quantified at Rs.10,000/- to the applicant within a period of two weeks from the date of receipt of certified copy of this order;
2. The applicant may submit an application to the respondent authorities seeking benefit under Rule 5A of the Rules ibid, which the respondents shall consider and pass a reasoned order thereon within a period of two weeks from the date of receipt of such application.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /AhujA/