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2. The facts in this case are not in dispute. The applicant while working as an Inspector of Income Tax, he was arrested by the CBI in a criminal case on 07.09.1994 and placed under deemed suspension from the same date. He was reinstated in service w.e.f.07.02.2003. As he was convicted in the said case on 22.03.2004 and sentenced on 25.03.2004, he was placed under suspension on 22.03.2004. Later on, he was dismissed from service on 31.07.2009. on 12.10.2010, Respondent No.2 passed order under FR 53(1) for enhancing the Applicants subsistence allowance to 75% of pay for the period from 22.06.2004 to 31.07.2009, holding that no delay was attributable to him for prolongation of his suspension. The said order was, however, recalled/cancelled soon without affording the Applicant any opportunity of hearing. The High Court of Delhi vide order dated 07.09.2012 set aside the said order of dismissal order dated 31.07.2009 with the direction to treat him under continued suspension. On 20.09.2012 the Applicant again requested the Respondent No.2 for enhancing his subsistence allowance to 75% of pay w.e.f. 22.06.2004 as his suspension had been prolonged for no reason attributable to him. On 27.09.2012 the Respondent No.2 again enhanced his subsistence allowance to 75% under FR 53(1) w.e.f. 22.06.2004 holding his suspension was prolonged for no reason attributable to him. Thereafter, the Respondent No.2 drew the amount of subsistence allowance, from the treasury for 22.06.2004 to 31.07.2009 (difference on account of enhancement from 50% to 75% of pay) and for 01.-08.2009 to 28.09.2012 (75% of pay) in the shape of a cheque got made in the name of the Applicant. However, he was again dismissed w.e.f. 28.09.2012. On 15.05.2013, the Appellate Authority set aside the dismissal order with the direction to the Disciplinary Authority to pass a fresh order. He was again dismissed from service on 26.11.2013. for the period of suspension from 28.09.2012 to 15.05.2013 and from 16.05.2013 to 26.11.2013 also, he was not paid any subsistence allowance. Meanwhile, he made a representation to the Respondents on 10.06.2013 to release the entire subsistence allowance at enhanced rate with interest. As no action was taken in the matter, he sent another representation on 16.09.2013 stating that during his suspension period from 22-03-2004 to 31-07-2009, as per the order of the then C. I .T., he was paid subsistence allowance @50% of pay but later vide order dated 27.09.2012, it was enhanced to 75% of pay with the observations that the period of his suspension had been prolonged for reasons not directly attributable to him. He has, therefore, stated that the respondents have deprived him of higher rate of subsistence allowance for all those years and, therefore, he shall be compensated by way of interest on the delayed part of subsistence allowance. He has stated that the arrears of the difference of subsistence allowance for the aforesaid period had in fact been drawn from the Consolidated Fund of India but the same was not disbursed to him as yet. According to him, during the period of his suspension, he was not engaged in any business, profession or vocation etc. and the subsistence allowance paid to him was hardly enough to take care of the financial needs of his family.

3. In this regard, he has relied upon G.I., M.F., O.M. No. F. 1: (2)-E. IV (A)/63-III, dated the 29th August, 1963 wherein it was stated that Government servant in whose case, the order of suspension is deemed to have been continued in force or who is deemed to have been placed under suspension from the date of original order of dismissal/removal /compulsory retirement from service under Rule 10(3) or (10)(4) of Central Civil Services (Classification, Control and Appeal) Rules, 1965, he is to be paid subsistence and other allowances under FR 53 with retrospective effect from the date of order of such dismissal/removal/ compulsory retirement. It is necessary to invoke the law of limitation while paying the arrears of subsistence and other allowances in such a case.

4. He has also submitted that the disciplinary authority proceeded with the enquiry ex parte notwithstanding the fact that the Government servant concerned had specifically pleaded his inability to attend the enquiry on account of financial difficulties caused by non-payment of subsistence allowance. In this regard, he has relied upon the judgment of the Supreme Court in the case of Ghanshyam Das Srivastava v. State of Madhya Pradesh (AIR 1973 Sc 1183) wherein it has been observed that where a Government servant under suspension pleaded his inability to attend the enquiry on account of financial stringency caused by the non-payment of subsistence allowance to him, the proceedings conducted against him ex parte would be in violation of the provisions of Article 311 (2) of the Constitution as the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings. The Court had also held that holding the enquiry ex-parte under such circumstances would be violative of Article 311 (2) of the Constitution on account of denial of reasonable opportunity of defence. The said point was also to be kept in view before invoking the provisions of Rule 14 (20) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Again the Supreme Court in the said judgment has held that if a Government servant under suspension pleads his inability to attend the disciplinary proceedings on account of non-payment of subsistence allowance, the enquiry conducted against him, ex parte, could be construed as denial of reasonable opportunity of defending himself and, therefore, after a Government servant is placed under suspension, prompt steps should be taken to ensure that immediate action is taken under FR 53, for payment of subsistence allowance without delay and regularly. In cases where recourse to ex parte proceedings become necessary, it should be checked up and confirmed that the Government servant's inability to attend the enquiry is not because of non-payment of subsistence allowance. He has also relied upon the Order of the co-ordinate Bench of this Tribunal in OA No.1793/2008  Sh. M.D. Gupta v. Secretary, Department of Revenue and Ors. decided on 16.02.2008. The operative part of the said order reads as under:-

10. It seems while denying retrospective enhancement of subsistence allowance respondents have not read full instructions and have read only one part of the OM. The full OM dated 13.9.1974 reads as under:-
(e) Retrospective revision- Government do not consider it advisable that any orders revising the subsistence allowance should be given retrospective effect.

The above is merely an advice of caution intended to serve as a guideline to the authorities ordering variation in subsistence allowance who are supposed to initiate action in all cases in sufficient time so that the requisite order can take effect as soon as the suspended officer completes six (now three) months under suspension. Obviously the clarification above cannot override the power conferred by the statutory provisions of FR 53. In case an order for variation of subsistence allowance under FR 53 is passed by the competent (disciplinary or appellate) authority after quite some time from the expiry of the requisite six (now three) months and that authority is satisfied that the variation has got to be given retrospective effect for reasons to be recorded in writing and orders accordingly, the same would be valid and binding on all concerned.