Delhi High Court

Dda vs Bbs Yadav on 12 May, 2015

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Judgment delivered on: May 12, 2015.
+      W.P.(C) 4458/2014 & CM APPL. No.8891/2014
       DDA                                                  ..... Petitioner
                             Through       Mr. Arun Birbal & Mr. Sanjay
                                           Singh, Advocates

                             versus
       BBS YADAV                                            ..... Respondent
                             Through       Mr. Anish Shrestha & Mr. Sudhir
                                           Kumar, Advocates
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S.MEHTA
                    JUDGMENT

KAILASH GAMBHIR, J. (ORAL)

1. The instant Writ Petition has been filed by the petitioner/ DDA

under Article 226 of the Constitution of India to challenge the order dated

14.08.2013 passed by the learned Central Administrative Tribunal,

Principal Bench, New Delhi (hereinafter referred to as the 'CAT') in

Original Application (in short 'OA') No.3848/2013 preferred by the

respondent.

2. In OA No.3548/2012 preferred by the respondent, he sought the

following reliefs:

i. That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing of impugned order dated

07.05.2012, order dated 02.01.2012 and consequently pass an order directing the respondent to grant the subsistence allowance to the applicant in the revised pay scale w.e.f. 01.01.2006 till 26.01.2010 with all consequential benefits, including the arrears of difference of subsistence allowance and bonus and special pay etc. during suspension period.

ii. That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing of impugned order dated 03.08.2010 only to the extend by which the applicant has been granted the subsistence allowance only @ 50% and consequently pass an order directing the respondent to review and to consider the subsistence allowance of the applicant by granting the same @ 75% after completion of three months from the date of suspension with all consequential benefits.

iii. That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to grant all the pay and allowance during the suspension period, after granting due increments and fixation of pay with all consequential benefits.

iv. Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant with the cost of litigation and with interest on arrears."

3. The learned Tribunal after placing reliance on its decision given by

a Larger Bench in the case of J.S. Kharat v. Union of India & Ors.,

reported in 2002 (3) ATJ 276, found the respondent entitled for revision

in the subsistence allowance during the period when he remained under

suspension and accordingly allowed prayer para- i) of the said OA by

directing the DDA to comply with the same within a period of three

months from the date of receipt of a copy of the said order. With regard to

the relief claimed by the respondent in terms of prayer part- ii) seeking

direction for reconsideration of his case for the grant of subsistence

allowance @ 75% after completion of three months from the date of his

suspension with all consequential benefits, the learned Tribunal left the

same to the direction of the Competent Authority of the DDA to take

decision in this regard in due course.

4. Assailing the legality and correctness of the impugned order dated

14.08.2013, Mr. Arun Birbal, the learned counsel for the petitioner/ DDA

vehemently contended that in the impugned order, the learned Tribunal

has followed the decision of its Larger Bench in the case of J.S. Kharat

(supra), but the view taken by the Larger Bench of the learned Tribunal

in the said case was not approved by the Hon'ble Supreme Court in their

decision reported as Union of India v. R.K. Chopra, (2010) 2 SCC 763.

The learned counsel thus submits that in view of the authoritative

pronouncement of the Hon'ble Supreme Court in R.K. Chopra's (supra)

case, the respondent is not entitled to the grant of relief for enhancement

of subsistence allowance w.e.f. 01.01.2006. The learned counsel submits

that the learned Tribunal also did not appreciate the fact that the Hon'ble

Lt. Governor in its order dated 20.07.2012 had directed that the period of

absence of the respondent from duty upto the date reinstatement will not

be treated as spent on duty and this period was ordered to be regulated as

provided under FR 54 (4), subject to the conditions laid down under FR

54(5), (6), (7) and (8) and therefore, in the light of the said direction, the

respondent was clearly not entitled to the benefit of revision of pay in the

subsistence allowance. The learned counsel also argued that pursuant to

the order dated 20.07.2012 passed by the Hon'ble Lt. Governor, a fresh

disciplinary proceeding against the respondent was contemplated but no

fresh chargesheet was issued to the respondent in view of the meeting

held at Raj Niwas on 11.04.2013 between the officials of the DDA with

the delegation of the Joint Action Committee of DDA Trade Unions and

Engineers and as an outcome of the deliberation which took place

between them, the Hon'ble Lt. Governor directed that no fresh

chargesheet need be issued to the respondent in the matter and the period

for which the respondent remained absent on account of dismissal/

removal, action may be taken as per rules on the principle of "no work,

no pay" laid down by the Hon'ble Supreme Court. The contention raised

by the learned counsel for the petitioner is that the respondent cannot be

allowed to blow hot and cold in the same breath as he has already taken

advantage of the said direction passed by the Hon'ble Lt. Governor and

yet he is challenging another part of the same order. Based on these

submission, the learned counsel for the petitioner strongly urges for

setting aside of the order passed by the learned Tribunal in O.A.No.

3848/2013.

5. Opposing the present Writ Petition, Mr. Anish Shrestha, the

learned counsel for the respondent strongly pleaded for upholding the

order passed by the learned Tribunal. The learned counsel submitted that

there is no illegality or any kind of perversity in the order passed by the

learned Tribunal, therefore, the same may not be interfered with by this

Court while exercising the power of judicial review.

6. We have heard the learned counsel for the parties at considerable

length and have given our conscious consideration to the arguments

advanced by them.

7. The facts are not in dispute between the parties and the same may

be briefly recapitulated to appreciate the controversy that has arisen as

well as to understand the controversy still surviving between the parties.

8. The respondent was working as a Junior Engineer (Civil). After

complaints of misconduct against the respondent were received, he was

placed on suspension vide order dated 27.05.1998 and subsequently was

dismissed vide order dated 26.05.2000 passed by Commissioner

(Personnel). The respondent had filed an appeal against the dismissal

order which was dismissed by the Appellate Authority. In the revision

petition filed before the VC, DDA, the penalty was reduced to

'Compulsory Retirement' vide order dated 16.02.2001.

9. Feeling aggrieved by the order of compulsorily retirement, the

respondent had preferred a Writ Petition before this Court vide W.P.(C)

No. 3126/2006. In the year 2007, the DDA was brought within the ambit

of the learned Tribunal and accordingly the said Writ Petition was

transferred for adjudication to the learned Tribunal and was registered as

T.A. No. 103/2007. The Ld. CAT vide order dated 12.05.2009 quashed

both the aforementioned orders on ground that disciplinary authority

before differing with the findings recorded by the enquiry officer did not

supply a copy of the disagreement note to the respondent. The learned

CAT however, allowed DDA to proceed against the respondent in

accordance with law.

10. The Disciplinary Authority had reconsidered the matter in the light

of the direction given by the learned Tribunal and accordingly a copy of

disagreement note was supplied to the respondent on or around

09.09.2009. The respondent made his representation in response to the

disagreement note vide his representation dated 17.09.2009. After having

taken into consideration the said representation filed by the respondent,

the Disciplinary Authority passed a fresh penalty order dated 27.01.2010

thereby dismissing him from service. The respondent accordingly

remained under deemed suspension w.e.f. 26.05.2000 till 26.01.2010.

11. Aggrieved by the said order of dismissal dated 27.01.2010, the

respondent had filed an appeal before the Hon'ble Lt. Governor and vide

order dated 20.07.2012 the Hon'ble Lt. Governor had set aside the order

of dismissal, suspension order, chargesheet and also the order appointing

the Inquiry/ Presenting officer on the ground that the Commissioner

(Pers.) of DDA was neither competent to impose any penalty nor to frame

charges against the respondents or to even appoint the Inquiry Officer and

the Presiding Officer as under the relevant regulations, the competent

Authority was Vice Chairman, DDA for the post of Junior Engineer. The

Hon'ble Lt. Governor by the said order permitted the Disciplinary

Authority to proceed a fresh against the respondent in accordance with

rule. The Hon'ble Lt. Governor in its order also observed that the period

of absence from the period upto the date of his reinstatement would not

be treated as spent on duty and directed the DDA to regulate the said

period as provided under FR 54 (4), subject to the conditions laid down

under FR 54(5), (6), (7) and (8).

12. No fresh disciplinary proceedings pursuant to the order dated

20.07.2012 of the Hon'ble Lt. Governor were initiated. A meeting was

however, held between the officials of the DDA and the delegation of the

Joint Action Committee of DDA, Trade Unions and Engineers at the Raj

Niwas on 11.04.2013 wherein the Hon'ble Lt. Governor gave direction

that no fresh charge sheet need to be issued to the respondent and the

issue with regard to the period for which the respondent remained absent

on account of dismissal to be decided by the DDA as per rules on the

principle of "no work, no pay" laid down by the Hon'ble Supreme Court.

13. By an order dated 3rd August, 2010 passed by the Competent

Authority, a sum of Rs.9,99,226/- was paid to the respondent towards

subsistence allowance for the period 26.05.2000 to 26.01.2010 and this

subsistence allowance was granted to the respondent @ 50% taking into

account his leave salary which he would have drawn had he been on

leave on half average pay and half pay alongwith dearness allowance

thereon and another compensatory allowance admissible to him on the

date of his deemed suspension. The respondent had filed a representation

dated 01.10.2010 seeking enhancement of subsistence allowance from

50% to 75% on the revised pay scale for the period from April, 1999 to

January, 2000 but the said request of the respondent was rejected by the

petitioner by order dated 02.01.2012. Against this order dated

02.01.2012, the respondent had filed an OA No.419/2012 which was

disposed of by the learned Tribunal vide order dated 09.02.2012 with the

direction to the petitioner herein to examine and decide the claim of the

respondent in view of the Larger Bench decision of the learned Tribunal

in J.S. Kharat's case (supra). Fresh order dated 07.05.2012 was passed

by the petitioner and the same was again challenged by the respondent in

OA No. 3848/2012 and now under challenge is the order dated

14.08.2013 passed by the learned Tribunal in the said OA.

14. The issues for determination before this Court is whether the

respondent is entitled to revised subsistence allowance during the period

of his suspension w.e.f. 01.01.2006 till 26.01.2010 and whether the

respondent should be granted enhancement of his subsistence allowance

during the period of absence from duty.

15. As per the Government of India order G.M.O.M. No. F-2 (36) -

Ests/- III/58 dated 27.07.1958, there are two categories of cases. One

refers to the cases in which the revised scale of pay takes effect from a

date prior to the date of suspension and other refers to the cases in

which, the revised scale of pay takes effect from a date falling within the

period of suspension. There is no doubt that the respondent falls in the

latter category. The relevant portion of the afore-mentioned O.M is

reproduced hereinunder:

(2) Revision of scale of pay while under suspension--A question having arisen as to whether a Government servant under suspension might be given an option to elect any revised scales of pay which might be introduced in respect of the post held by him immediately prior to suspension is revised, the Government of India have decided as follows:

1. Cases in which the revised scale of pay takes effect from a date prior to the date of suspension.

In such cases the Government servant should be allowed to exercise the option under FR 23 even if the period during which he is exercise the option falls within the period of suspension. He will be entitled to the benefit of increase in pay, if any, in respect of the duty period before suspension, and also in the subsistence allowance, for the period of suspension, as a result of such option.

2. Cases in which the revised scale of pay takes effect from a date falling within the period of suspension.

(a) Under suspension a Government servant retains a lien on his substantive post. As the expression `holder

of a post' occurring in FR 23 includes also a person who holds a lien or a suspended lien on the post even though he may not be actually holding the post, such a Government servant should be allowed the option under FR 23 even while under suspension. The benefit of option will, however, practically accrue to him in respect of the period of suspension, only after his reinstatement depending on the fact whether the period of suspension is treated as duty or not. (Underlining Supplied)

(b) A Government servant who does not retain a lien on a post the pay of which is changed, is not entitled to exercise the option under FR 23. If, however, he is reinstated in the post and the period of suspension is treated as duty, he may be allowed to exercise the option after such reinstatement. In such cases, if there is a time-limit prescribed for exercising the option and such period had already expired during the period of suspension, a relaxation may be made in each individual case for extending the period during which the option may be exercised.

16. The aforementioned rules make it clear that the benefit of

exercising option available under FR 23 would be available only to a

"holder of post" under Rule FR 23. A holder of post is defined as follows:

"The expression "holder of a post" occurring in this rule applies also to a person who is not actually holding the post, the pay of which is changed, provided he has a lien or a suspended lien on that post."

17. Therefore, a "holder of post" shall include a suspended employee

who is subsequently reinstated depending on the fact that whether the

period of absence from duty is treated as period spent on duty or not.

Hence, a suspended employee must be re-instated and his period of

suspension must also be treated as on duty.

18. It is evident from the documents available on record, that the

respondent falls under the aforementioned Rule 2(a). The Impugned order

dated 07.05.2012 passed by the Vice- Chairman, DDA denied the

petitioner any relief on the ground that he cannot exercise the option for

revision of scale of pay under FR-23 in view of the fact that he was

dismissed from service without re-instatement from suspension. The

relevant portion of the aforesaid order is reproduced hereinunder:

"Since, Shri. B.B.S. Yadav has been dismissed from service without reinstatement from suspension and accordingly had neither retained his lien on the post held by him, nor the period of his suspension has been treated as on duty, he is not entitled to exercise the option for revision of scale of pay under FR-23, in view of the above instructions of the government."(Emphasis Supplied)

19. However, approximately two months after the afore-mentioned

order, the Hon'ble Lt. Governor passed the order dated 20.07.2012

wherein he quashed the earlier orders of suspension and reinstated the

respondent in the following terms:

"11. It is further ordered that the period of absence of duty up to the date of reinstatement, consequent upon this order, will not be treated as spent on duty, and in pursuance to provisions of FR 54 (1) (a) & (b), this period is ordered to be regulated as provided under FR 54 (4), subject to the conditions laid down under FR 54(5), (6), (7) & (8).

(Emphasis supplied)

20. To further elaborate the rules, reliance may be placed on the

decision rendered by the Hon'ble Supreme Court in the case of Union

of India vs. R.K. Chopra, AIR 2010 SC 649 wherein the Apex Court

made the following observations in the paragraph 26:

"26...clarification with Office Memorandum dated 27th August, 1958 it is clear that if the revision of pay takes effect from a date prior to the date of suspension of a Government servant then he would be entitled to benefit of increment in pay and in the subsistence allowance for the period of suspension, but if the revision scale of pay takes effect from a date falling within the period of suspension then the benefit of revision of pay and the subsistence allowances will accrue to him, only after reinstatement depending on the fact whether the period of suspension is treated as duty or not. In view of the clear distinction drawn by the Rule making authority between the cases in which the Revised scale of pay takes effect from a date prior to the date of suspension and a date falling within the period of suspension, the plea of discrimination raised cannot be sustained especially when there is no challenge to the Rules. The benefit of pay revision and the consequent revision of subsistence allowance stand postponed till the conclusion of the departmental proceedings, if the pay revision has come into effect while the Government servant is under suspension. So far as the present case is concerned, the Revised Pay Rules came into force on 1st January, 1996 when the respondent was under suspension and later he was dismissed from service on

04.08.2005 and hence the benefit of pay revision or the revision of subsistence allowance did not accrue to him. The Tribunal as well as the High Court have committed an error in holding that the respondent is entitled to the benefit of Revised Pay Rules. We, therefore, allow the appeal and set aside those orders." (Underlining Supplied)

21. It is thus clear that the respondent, after the afore-mentioned order

dated 20.07.2012 was reinstated in service. However, the same order

treats his suspension period as period spent not on duty thereby

disentitling the respondent from availing the benefits of exercising the

option under FR-23, consequently, also disentitling him from availing the

revised subsistence allowance. The case of the respondent is thus

squarely covered by the said decision of the Hon'ble Supreme Court in

R.K. Chopra's case (supra) and reliance placed by the learned Tribunal

on the decision of its Larger Bench in the case of J.S. Kharat's case

(supra) was highly misplaced and therefore, the same deserves to be set

aside and to that extent, the present Writ Petition filed by the petitioner is

allowed. So far as the issue relating to the enhancement of subsistence