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Per: K. V. Eapen, Administrative Member The applicant, while working as Postal Assistant Kozhencherry MDG, was placed under suspension on 13.06.2020 pending initiation of departmental proceedings vide order dated 13.06.2020 issued by the Superintendent of Post Offices, Pathanamthitta Division under Rule 10 of the CCS (CCA) Rules 1965. The order is produced at Annexure A7 in Original Application 234/2021. The order indicates that during the period that it shall remain in force, the headquarters of the applicant would be at Kozhencherry and that the applicant would not leave the headquarters without obtaining previous permission of the 3rd respondent. Further, it indicates that under the provisions contained in Fundamental Rule - 53 (FR 53), the payment of subsistence allowance was allowed, at an amount equal to the leave salary for half pay leave, to the applicant during the period under suspension.

3. When the OA was filed in May 2021, the relief prayed for by the applicant was to quash the impugned orders at Annexures A1, A12 and A14 described above and to reinstate the applicant to service with effect from 09.03.2021. Further, the O.A was filed with a prayer to direct the respondents to grant enhanced subsistence allowance in terms of FR 53 with effect from 11.09.2020, the date of expiry of three months from the date of the initial suspension order at Annexure A7. We are considering O.A 234/2021 along with the linked Contempt Petition CP 25/2021 as well as the O.A 417/2020 together for disposal. The O.A 417/2021 was separately filed by the applicant against the same respondents contesting the action being taken to initiate recovery proceedings against her for loss caused to the Department. She contended that this loss was caused by the action of MPKBY agent and there was no proper quantification prior to the fixation of liability on the co- offenders or subsidiary offenders in terms of extant instructions issued by the authorities. We will first take up O.A 234/2021 along with C.P 25/2021 for consideration.

10. It is also further contended that the extension of Suspension by the Committee, without an enhancement of subsistence allowance by another 50% in terms of FR 53, is also illegal and unfair on many other grounds. The applicant submits that as per FR 53 a government servant is entitled to an enhancement in his/her subsistence allowance by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of first three months, if the period of suspension is again prolonged for reasons not directly attributable to such official. In Mahabir Prasad Yadav v Lakshmibhai College, WP(C) No.13811/2019 (MANU/DE/1431/2020), the Hon'ble High Court of Delhi had directed the enhancement of subsistence allowance from 50% to 75% by quashing the decision to maintain status quo as regards the subsistence allowance of the Petitioner therein. It is submitted that in the instant case suspension has been prolonged only due to the inaction O.A No.180/234/2021 and connected cases on the part of the Department to conclude the Inquiry in a time bound manner. Therefore, the denial of enhancement of subsistence allowance to the Applicant in terms of FR 53(1)(ii)(a)(i) is illegal.

O.A No.180/234/2021 and connected cases

14. The respondents initially filed a reply statement in July 2021 against the interim relief sought for by the applicant, which was to reinstate her to service with immediate effect and to direct them to disburse the subsistence allowance at the enhanced rate with effect from 11.09.2020, the date of expiry of Annexure A7 suspension order. After a rejoinder was filed by the applicant against the contentions in the reply statement, this Tribunal after due consideration of the matter delivered interim directions on 23.09.2021. In the interim order nothing was found unwarranted calling for interference with the action taken by the Department under the Rules for extension of suspension period. Further, in relation to the plea for enhancement of subsistence allowance, this Tribunal took due notice of the judgment of Hon‟ble High Court of Delhi in Mahabir Prasad Yadav(supra). It was noted that the Hon‟ble High Court of Delhi had not given a specific direction therein in its judgment to enhance the said subsistence allowance but had only directed the respondents to take a decision in the light of FR 53, after examining the issue in accordance with law. Further the interim order of the Tribunal noted that the proviso in FR 53 (1) (ii) (a) had only outlines the „competence‟ of the authority for „varying‟ the subsistence allowance by an increase after a period of three months if, in the opinion of the said authority, the period of suspension had been prolonged for reasons to be recorded in writing not directly attributable to the employee. It was also noted in the interim order that this Tribunal in another matter in O.A.No.180/00134/2016 decided on 16.03.2021 had concluded that the said provisions under FR 53 (1)(ii)(a) does not clearly stipulate that the subsistence allowance must be varied on completion of the first three months of suspension. The Tribunal had not allowed the O.A No.180/00134/2016, wherein the applicant after O.A No.180/234/2021 and connected cases being suspended on 08.10.2009 had been given an enhanced subsistence allowance only after a period of 15 months and where it was claimed that this was a violation of the above referred statutory provisions under FR 53. Hence, through these considerations the interim order dated 23.09.2021 of this Tribunal in the matter of the present applicant in this O.A, taking in light the directions issued in the judgment of Hon‟ble High Court of Delhi, only directed the competent authority under the respondents to examine the request of the applicant for enhancement in the rate of subsistence allowance in the light of the provisions of FR 53 and other executive instructions applicable. The respondents were directed to take a considered decision in the matter by passing a specific order in this regard. It was also ordered in the interim order dated 23.09.2021 that the order would be passed within a period of one month from the date of receipt of a copy of the order. The respondents then passed an order rejecting the request made by the applicant.