Delhi High Court
R.D.Gupta vs Union Of India And Anr on 16 January, 2013
Author: Pradeep Nandrajog
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: January 16, 2013
+ W.P.(C) 248/2013
R.D.GUPTA ..... Petitioner
Represented by: Mr.Sanjeev Sachdeva,
Sr.Advocate instructed by Mr.K.K.Khurana,
Mr.Sumeta De, Mr.A.K. Mehta, Advocates.
versus
UNION OF INDIA AND ANR ..... Respondents
Represented by: Mr.Himanshu Bajaj, Advocate
with Mr.Sameer Jain, Mr.Puneet Siddhartha,
Advocates for R-1.
Mr.R.V. Sinha, Advocate with Mr.R.N.Singh,
Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE VEENA BIRBAL
PRADEEP NANDRAJOG, J. (ORAL)
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08.08.2007 His suspension was revoked.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, Representations given to various
4.11.2007, 18.11.2007, authorities including Chairperson of
5.12.2007, 7.1.2008, CBDT.
14.5.2008, 18.8.2008,
16.2.2009 and 6.4.2009
31.07.2009 This Tribunal passed order in OA
No.2040/2009 directing the
respondents to decide 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 (ITSC-
III) 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. 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. Period Nature Remarks
No.
I. 14.05.2004 Period of Subsistence
07.08.2007 suspension allowance as per
law (50% or 75%
as the case may
be)
II. 08.08.2007 Not joined any Unauthorized
11.10.2007 place absence.
III. 12.10.2007 Posted to Unauthorized
29.11.2009 Chennai ITAT absence.
but not joined
there. Applicant
claims to have
joined at Ajmer.
IV. 30.11.2009 AT ITSC-II Joined the post at
onwards Chennai 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. 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. 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.
(PRADEEP NANDRAJOG)
JUDGE
(VEENA BIRBAL)
JUDGE
JANUARY 16, 2013//skb//
