Document Fragment View

Matching Fragments

5. Between the filing of the OA on 27.07.2009 and final hearing on 29.08.2011, we note that the applicant has filed his rejoinder on 27.01.2010, a rejoinder affidavit on 5.04.2010 to the additional affidavit submitted by the respondents on 05.03.2010. Applicant also responded with a rejoinder on 18.10.2010 to the second additional affidavit filed by the respondents on 8.10.2010.

6. The applicant argued his case in person and very extensively narrated the background of the case and expressed his problems with the respondents. In support of his claim that he has tried to work at Ajmer and later at Chennai but he has not been provided with administrative logistics and has not been disbursed with pay and allowances, he referred to his leave letter, CVC letter and his representations to authorities concerned. As his argument was rather presented in a random manner, not cogently, he was asked to submit his written submission. Having allowed the same, now we have been given a voluminous written submissions where he has cited as many as 17 judgments in support of his contentions. It may be apt for us to note that his written submissions running to 44 pages and the enclosures which are mainly copies of judgment number seventeen. It is seen that his written submission is as big as his OA and we would refer to such of the judgments and facts as may be relevant for adjudicating issues. The applicant submits that respondents are misleading the Tribunal, and are not bringing out complete and full facts and even in the averments in the counter reply certain false averments have been made. He cites the examples that though he was continuing as CIT (Appeal) at Ajmer, in Paras 4.9 and 4.10, it has been mentioned by the respondents that even though he was relieved of his duties by CCIT Jaipur, he was continuing at Ajmer. It has also been stated that the applicant has not officially taken over charge as CIT (Appeal) Ajmer and was not working. As such, the question of relieving Shri Gupta from that post did not arise. He submits that these are contrary statements. He also cites other examples of misleading and perverse averments made by the respondents in their counter affidavit. At Para 4.8, the respondents have submitted that the applicant had refused to join at Chennai. On the other hand, he submits that he had made numerous representations on 7.01.2008, 14.01.2008, 18.01.2008 etc. where he had repeatedly requested for correction of the non compliable transfer order dated 11.10.2007 and to relieve him from the post of CIT (Appeal) Ajmer where he had already joined. He also accuses the respondents that they have made use of defamatory words like treating the applicant as absconder which is contrary to the standard practice followed in the government. He also submits that the respondents have neither denied the points raised by him in the OA or they have evaded the issues raised by him. He submits that as per law such non specific and evasive denials are to be treated as admission and facts pleaded by the applicant for which no further pleadings would be required. Another set of arguments that he advanced is regarding the treatment of his suspension period (14.05.2004 to 11.10.2007). He requests to treat the suspension period as on duty and to grant him full salary and allowances after proper regularisation of the said period as the criminal investigation on the basis of which he was suspended has been admittedly closed. He submits that the subsistence allowance was sanctioned at 50% of the pay on 14.05.2004 and increased to 75% of pay on 6.08.2004. However, the said subsistence allowances are yet to be paid to the applicant. He submits that he has already submitted necessary certificates under FR 53(1) and 53(2) stating clearly that he was not working anywhere all through the said period of suspension. Refuting the contentions raised by the respondents that applicant would be paid his subsistence allowances only after his joining at Chennai was completely arbitrary and colourable exercise of power. In this context, he submits that the non payment of subsistence allowance was to harass the applicant and he placed his reliance on the judgment of Honble Supreme Court in the case of Capt. M. Paul Anthony versus Bharat Gold Mines Ltd. [AIR 1999 SC 1416]. For the reckless inaction of delay in the release of subsistence allowance is malice in law as held in Municipality of Bhiwandi & Nizampur Versus Kailash Sizing Works [AIR 1975 SC 529]. Referring to the misuse of power, misrepresentation and unauthorized action, he submits that these are of malice in law as held by Honble Supreme Court in the case of Vijay Shekhar and Another versus Union of India and Others [(2004) 4 SCC 666]. Non payment of subsistence allowance intentionally would constitute also malice in law as held by Honble Supreme Court in the case of Smt. S. R. Venkatraman versus Union of India & Another [AIR 1979 SC 49]. He also relied on many other judgments in support of his contentions involving administrative lapses on part of the respondents. Permissibility of interest for belated payment and to release full pay and allowances treating the suspension period as duty and the following case laws are relied on:-

14. In respect of the applicants suspension period (14.05.2004 to 07.08.2007) it is noticed that vide order dated 14.05.2004 (Page-29) the applicant was allowed to draw subsistence allowance admissible under FR 53 (1) read with FR 53(2), and in the order dated 6th August, 2004, he was informed that the subsistence allowance was increased by 50% of the sum drawn by him then w.e.f. the expiry of three months from the date of suspension. These two orders read together would connote that the applicants subsistence allowance entitlement would be 50% and 75% for the period 14.05.2004  13.08.2004 and 14.08.2004  07.08.2007 respectively. If the same has not been released to the applicant, the second respondent is directed to pay him the said entitled subsistence amount as per law.

(ii) The applicant would be entitled to get subsistence allowance admissible to him under FR 53 (1) and FR 53(2) at the rate of 50% for the period from 14.05.2004 to 13.08.2004, and 75% for the period from 14.08.2004 to 07.08.2007.

(iii) The competent authority should consider the facts of the applicants case of remaining unauthorisedly absent by not joining the posting at Chennai and decide about the treatment of two periods viz. 08.08.2007 to 11.10.2007 and 12.10.2007 to 29.11.2009 after putting the applicant on notice to defend himself and only on the basis of such decision to release him the admissible pay and allowances as per law.