Central Administrative Tribunal - Delhi
Smt. Bisno vs Municipal Corporation Of Delhi (North) on 12 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 599/2013 New Delhi this the 12th day of March, 2014 Honble Shri A.K.Bhardwaj, Member (J) Smt. Bisno, W/o Late Shri Mohinder, R/o S 721, JJ Colony, Mangolpuri, New Delhi. Applicant (By Advocate Shri Vikas Kumar) VERSUS Municipal Corporation of Delhi (North), Through its Commissioner, Civic Centre, J.L.N.Marg, Minto Road, New Delhi-110002 Respondent (By Advocate Shri Amar Pandey proxy for Ms. Alka Sharma) O R D E R
As can be abridged from the pleadings of parties, the applicant Smt. Bisno w/o late Shri Mohinder, Safai Karamchari (SK) DEMS, Rohini Zone, NDMC (erstwhile MCD) was placed under deemed suspension w.e.f. 14.03.1995 along with her husband Shri Mohinder S/o Shri Subey Singh, Safai Karamchari vide office order No. 1118/SIO(P)/Vig./95/S-107 dated 31.07.1995 in view of their arrest/involvement in criminal case registered vide FIR No. 163/95 u/s 498-A/506/342/34 IPC, P.S. Mangolpuri, Delhi. On expiry of three months from the date of suspension i.e. 14.06.1995, their subsistence allowance was enhanced from 50% to 75% vide office order No. 1118/SIO (P)/Vig./95/7696 dated 12.12.1995. After the decision of Trial Court (Additional Session Judge) Delhi, the son of applicant, Mr. Sanjay S/o of Shri Mohinder (expired on 23.3.2004) made a representation for his reinstatement in service and release of monetary benefits as due. In terms of the judgment of Additional Sessions Judge, Delhi dated 15.12.2004, the applicant was convicted and sentenced to undergo rigorous imprisonment (RI) for one year with fine of Rs.500/- and in default of payment of fine, further simple imprisonment of 15 days u/s 498-A/34 IPC and with further sentence of RI for 07 years with a fine of Rs.1,000/-and in default of payment of fine, simple imprisonment for 30 days u/s 304B/34 IPC. In view of her conviction, the disciplinary authority passed the order No.118/SIO (P)/Vig./PC/95/D-75 dated 21.10.2008 imposing upon her the penalty of removal from service in view of the provisions of Regulation 9 (1) of the DMC Services (Control & Appeal) Regulations, 1959. The disciplinary authority also ordered that the period of suspension of the applicant might be treated as not spent on duty and the pay and allowance for the period might be restricted to what, she had already received. For easy reference, relevant excerpts of the order dated 21.10.2008 (ibid) is extracted hereinbelow:-
Now, therefore, Addl. Commissioner (Engg.), the Competent Authority after considering the judgment dated 10/15.12.2004 announced by the Honble Court of Shri N.K.Sharma, ASJ, Delhi and the conduct of Smt. Bisno, Safai Karamchari leading to her conviction in the said criminal case has imposed the penalty of removal from service which shall not be a disqualification for future increment upon Smt.Bisno, Safai Karamchari by invoking the provisions of Regulation 9 (1) of the DMC Services (Control & Appeal) Regulations, 1959, vide his orders dated 26.9.2008.
It has also been ordered by the Addl. Commissioner (Engg.), the Competent Authority that the suspension period of Smt.Bisno, Safai Karamchari may be treated as not spent on duty and the pay and allowances for suspension period be restricted to what she had already been paid during her suspension.
This is issued and notified for information and necessary action by all concerned. The applicant had preferred criminal appeal No. 6/2005 against the order of Additional Session Judge, Delhi. In terms of the judgment dated 2.11.2010, the appeal of the applicant was accepted and the impugned judgment and order of sentence was reversed. She was acquitted of the charge under section 498-A and 304-B IPC on benefit of doubt. Para 24 of the judgment is extracted hereinbelow:-
24. In view of the discussion above, I accept the appeals and set aside the impugned judgment and order on sentence. The appellants are acquitted of the charges under Section 498A and 304B IPC, giving them benefit of doubt. After the said judgment of Honble High Court, the disciplinary authority passed the order no. 1118/SIO (P) Vig./PC/95/R-46 dated 27.10.2011 reinstating the applicant in service with immediate effect. The intervening period of dismissal from service was directed to be treated as deemed suspension. The period of suspension was directed to be treated as not spent on duty. In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought issuance of direction to respondent to grant full enhanced subsistence allowance to her for the suspension period till reinstatement and to pay her all full pay and allowances. Learned counsel for the applicant pleaded:-
That once the applicant has been acquitted of the criminal charges by the Honble High Court, the denial of full pay and allowances to her for the period of suspension/dismissal is uncalled for wrong, unjust and violation of principles of natural justice.
In treating the period of dismissal and suspension as not spent on duty, the concerned authority violated FR 54(2). For the period of suspension, the competent authority ought to have granted the applicant enhanced subsistence allowance.
As has been viewed by Honble Supreme Court in Khem Chand Versus Union of India (AIR 1963 SC 687), the real effect of the order of suspension is that the suspended employee continues to be a member of Government service and should be paid some allowance-generally called subsistence allowance which is normally less than his salary.
The present remuneration of the applicant is Rs.15000/- while her counter parts in the department are getting Rs.25000/- p.m. In view of the judgment of Honble Supreme Court in State of Maharashtra Vs Chander Bhan Tale (1983) 3 SCC 387), the non payment of subsistence allowance during pendency of trial is violative of the constitutional provision.
The respondents have treated the applicant differently even from her husband.
2. In the counter reply filed on behalf of respondent it has been explained that the competent authority has reinstated the applicant in service and has passed an order regarding her entitlement to pay and allowances for the period of suspension/dismissal as also regarding the fate of said period.
3. I heard the learned counsel for parties and perused the record. As far as the treatment of period of dismissal/suspension after reinstatement of a Government servant is concerned, in terms of FR 54 (4) and FR 54-B (5), before taking a decision regarding intervening period of suspension, the competent authority need to give an opportunity to the concerned employee to make a representation and espouse his stand in this regard. Present case is not a case where the applicant has been fully exonerated of the charges in the disciplinary proceeding. Here is a case where she was convicted by the Trial Court and finally the Honble High Court could accept her criminal appeal by giving her benefit of doubt, thus the case cannot be held to be covered under FR 54 (2) and 3. Besides, as has been provided in G.I.M.F., O.M.No. 15 (4) E.IV (59) dated 25.05.1962 and 9.08.1962, the competent authority has the discretion to pay the proportionate pay and allowances and treat the period as duty for any specified purpose or only to pay the proportionate pay and allowances. In the said OM, it is also provided that it is not necessary that the payment of pay and allowance for the period of absence depend upon the treatment of intervening period. For easy reference, the OM is reproduced hereinbelow:-
(3) Treatment of period of absence and payment thereof.- The Government of India have conveyed the following clarifications in regard to certain points which have been raised in connection with the application of FRs, 54, 54-A and 54-B:-
(1) The decision of the competent authority under FRs 54, 54-A and 54-B is in respect of two separate and independent matters, viz., (a) pay and allowances for the period of absence, and (b) whether or not the period of absence should be treated as duty.
It is not necessary that the decision on (a) above should depend upon the decision on (b) above.
The competent authority has the discretion to pay the proportionate pay and allowances and treat the period as duty for any specified purpose (s) or only to pay the proportionate pay and allowances. It has no discretion to pay full pay and allowances when the period is treated as non-duty.
If no order is passed directing that the period of absence be treated as duty for any specified purpose, the period of absence should be treated as non-duty. In such event, the past service (i.e.) service rendered before dismissal, removal, compulsory retirement or suspension will not be forfeited.
(2) As fundamental Rule 54 is absolute, the law of limitation restricting payment of arrears of subsistence allowance only for a period of three years in certain circumstances need not be invoked at the time of paying the arrears of pay and allowances for the period from the date of dismissal/removal/ compulsory/retirement/ suspension to the date of reinstatement in respect of all cases where the pay and allowances are regulated on reinstatement in accordance with the provisions contained in FR 54, FR 54A and FR 54-B. Nevertheless, in view of the provisions of FR 54, the disciplinary authority ought to have given the applicant an opportunity to make her representation before taking any decision regarding treatment of intervening period and pay and allowances for the same.
4. As far as the question of payment of subsistence allowances for the period of suspension is concerned, the applicant was placed under suspension w.e.f 14.03.1995 and was removed from service on 21.10.2008. In the counter reply filed on behalf of respondent, it is stated that after expiry of three months of the order of suspension, subsistence allowance of the applicant was enhanced from 50 % to 75%. In the original application filed by her, the applicant has not set up any case regarding her entitlement of subsistence allowance for the intervening period. There is no averment in para 4 of the OA that when she remained under suspension, the respondent did not grant her any subsistence allowance. Nevertheless, while considering her representation, regarding treatment of the period of suspension/ dismissal and pay and allowances for the same, the respondents would also verify the facts regarding entitlement of the applicant for subsistence allowance during the period of suspension and also whether any such allowance was paid to her or not. The Original Application is disposed of with direction to respondent to give an opportunity to applicant to make a representation regarding treatment of the period of her service during which she remained under suspension/dismissal and her entitlement for pay and allowances during such period within four weeks from the date of receipt of a copy of the order. The applicant would have two weeks time thereafter to make a representation and a decision thereon would be taken within further period of eight weeks. OA stands disposed of. No costs.
(A.K.Bhardwaj ) Member (J) sk