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2013 DIGILAW 135 (DEL)

R. D. Gupta v. Union of India

2013-01-16

PRADEEP NANDRAJOG, VEENA BIRBAL

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JUDGMENT : Pradeep Nandrajog, J. 1. Noting that the petitioner has since superannuated from service, we have heard arguments addressed by learned counsel for the writ petitioner and the respondents. 2. Vide impugned order passed by the Tribunal on October 11, 2011 against which review was declined as per impugned order dated March 16, 2012, the applicant before the Tribunal, Shri R.D.Gupta has filed the writ petition. 3. Shri R.D.Gupta is a direct recruit in the Indian Revenue Service - 1978 Batch. He superannuated on September 30, 2012. Unfortunately, the last leg of his service since May 2004 had been most unhappy. Put in a tabular form, the unfortunate milestones crossed by him would be as under:- 14.05.2004 The applicant was placed under suspension. 08.08.2007 His suspension was revoked. 11.10.2007 Applicant was posted as CIT (ITAT) at Chennai. 12.10.2007 Applicant joined/reported as CIT (Appeal) at Ajmer. 30.11.2009 He joined at Chennai. 21.04.2010 His LPC was received at Chennai. 22.06.2007 Jaipur Bench of this Tribunal passed order in OA No.219/2007 directing respondents to revoke applicant’s suspension. 29.10.2007 Applicant received the Communication on his posting order as CIT(ITAT) Chennai. 31.10.2007,1.11.2007, 4.11.2007, 18.11.2007, 5.12.2007, 7.1.2008, 14.5.2008, 18.8.2008, 16.2.2009 and 6.4.2009 Representations given to various authorities including Chairperson of CBDT. 31.07.2009 The Tribunal passed order in OA No.2040/2009 directing the respondent to decided his representation. 30.11.2009 Applicant joined at Chennai and stated that he has relinquished his charge as CIT (Appeal) Ajmer 3.12.2009 He reported about his joining at Chennai as CIT (ITSC-II). 20.11.2009 Applicant was posted as CIT (ITSCIII)at Chennai in supersession of the earlier transfer order dated 11.10.2007. 4. Being suspended on May 14, 2004 and suspension revoked on August 08, 2007, no charge-sheet was ever served and the petitioner, as noted above superannuated from service on September 30, 2012. He litigates with the department on the subject of subsistence allowance to be paid to him as also to receive the benefits of revised pay as per the recommendations of the 6th Central Pay Commission. An issue pertaining to salary not being released to him when he was required to join at Chennai when suspension was revoked till he actually joined at Chennai on November 30, 2009 also needs to be adjudicated upon; since it arose. 5. An issue pertaining to salary not being released to him when he was required to join at Chennai when suspension was revoked till he actually joined at Chennai on November 30, 2009 also needs to be adjudicated upon; since it arose. 5. The dispute pertaining to salary for the period October 12, 2007 till November 29, 2009 centers on petitioner being or not being properly relieved from Ajmer, the place where he was working when he was suspended; and as per the petitioner once the suspension was revoked he had to join at Ajmer and the Competent Authority had to issue a formal relieving order, which was not done, and this prevented him from joining at Chennai. 6. Remanding the matter for fresh consideration, five directions have been issued by the Tribunal in para 15 of its order dated October 11, 2011, which five directions read as under:- “(i) The competent authority to examine the manner in which three distinct periods (Period I, II and III in the table below) need to be treated as per law. Sl. No. Period Nature Remarks I 14.05.2004 07.08.2007 Period of suspension Subsistence allowance as per law (50% or 75% as the case may be) II. 08.08.2007 11.10.2007 Not joined any place Unauthorized absence. III. 12.10.2007 29.11.2009 Posted to Chennai ITAT but not joined there. Applicant claims to have joined at Ajmer. Unauthorized absence. IV. 30.11.2009 onwards AT ITSC-II Chennai Joined the post at Chennai. (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 applicant’s case of remaining unauthorizedly 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. (iv) The respondents are directed to examine the applicant’s entitlement of revised pay and allowances as per 6th CPC and release the admissible amount to him. (v) The applicant would not be entitled to any interest on the amount which would be released to him on account of the above directions.” 7. (iv) The respondents are directed to examine the applicant’s entitlement of revised pay and allowances as per 6th CPC and release the admissible amount to him. (v) The applicant would not be entitled to any interest on the amount which would be released to him on account of the above directions.” 7. Now, the first direction is actually not a direction but is only a tabulation dividing the period of dispute into four different segments as per Serial No.I to IV of the first direction, a fact conceded to by learned counsel for the parties. 8. Thus, we need not trouble ourselves with the first so called direction. 9. As regards direction No.(ii), we find that with reference to three orders dated May 14, 2004, August 06, 2004 and August 07, 2007, in paragraph 14 of its opinion, the Tribunal has already noted that the issue of subsistence allowance stood resolved inasmuch as the same had to be increased from 50% to 75% upon expiry of suspension exceeding three months, and for which we simply highlight that as per law unless delay at a departmental inquiry is held attributable to a Government servant, the subsistence allowance has to be increased. In the instant case we highlight that the question of the petitioner delaying the inquiry does not arise because no charge-sheet was ever issued. Thus, we see no reason why the Tribunal ought to have remanded the matter on the subject of subsistence allowance as per direction No.ii. 10. As regards directions No.(iii) and (iv), we see no reason why the Tribunal should not decide the matter as nothing warrants a remand. As regards direction No.v as to why interest should not be paid on amounts found to be wrongly withheld, we find no reasons given by the Tribunal. 11. Accordingly, we dispose of the writ petition substituting direction No.ii issued by the Tribunal with a mandamus to the respondents to release the subsistence allowance to the petitioner for the period he remained under suspension as per orders already passed on May 14, 2004, August 06, 2004 and August 07, 2007. The payment would be paid within four weeks from today together with simple interest @6% per annum from the dates the amounts were payable till payment is made. The payment would be paid within four weeks from today together with simple interest @6% per annum from the dates the amounts were payable till payment is made. We restore OA No.2041/2009 for fresh adjudication by the Tribunal on the disputes pertaining to : (i) salary payable to the petitioner after the suspension order was revoked; (ii) petitioner’s entitlement to receive pay in the revised pay-scales as per the recommendations of the 6th Central Pay Commission; and (iii) interest on delayed payments if any found to be payable. 12. Parties are directed to appear before the Registrar, Central Administrative Tribunal on February 11, 2013. 13. Copy of this order be supplied dasti to learned counsel for the parties and be sent to the Registrar, Central Administrative Tribunal through Special Messenger.