Government of NCT of Delhi vs Mahender Singh

Sanjiv Khanna, J.—Government of National Capital Territory of Delhi has filed the present writ petition to assail the order dated 18th January, 2011 allowing O.A. No. 3111/2009 filed by Mr. Mahender Singh with the following directions:

In view of the above, the OA is disposed of with a direction to the Respondents to pass orders for payment of subsistence allowance to the applicant for the period from 23.05.2007 to 02.04.2008 and to review the case of the applicant for grant of enhanced subsistence allowance as per the rules on the subject reckoning his date of suspension as 23.05.2007. This may be done within six weeks from the date of receipt of a copy of this order.

In the writ petition, various factual aspects have been mentioned but these to our mind are not relevant as these are allegations on the basis of which departmental proceedings have been initiated against the Respondent. The Respondent is facing prosecution under the Prevention of Corruption Act, 1988. He was suspended vide order dated 24th May, 2007 with effect from 23rd May, 2007. Subsequently, he was dismissed from service under Article 311(2)(b) of the Constitution by the disciplinary authority vide order dated 1st June, 2007 but this order was set aside in appeal by the appellate authority vide order dated 28th March, 2008. The operative portion of the order dated 28th March, 2008 passed by the appellate authority reads as under:

In view of the above, the punishment order dated 1.6.2007 issued by the disciplinary authority is set aside. Ex. ASI Sukhdev Singh No. 2573/W and Ex. HC Mahender Singh No. 593/W be re-instated in service without prejudice to the disciplinary proceedings which may be re-instated in service without prejudice to the disciplinary proceedings which may be instituted against them in the due course of time. On their re-instatement, they should remain under suspension till their case is decided or disciplinary proceedings are initiated against them. The intervening period from the date of dismissal to the date of his reporting back for duty and their suspension period will be decided after a final decision is taken in the criminal case/departmental enquiry.

(Emphasis supplied)

The net effect of the aforesaid order is that the order of dismissal has been set aside by the appellate authority with the direction that the disciplinary proceeding should be initiated. Thus, the order of dismissal dated 1st June, 2007 stands obliterated and the Respondent is under deemed suspension. The Respondent continues to remain in employment and accordingly is entitled to subsistence allowance and in this context the tribunal has issued the directions mentioned in paragraph 7 above. The aforesaid directions do not stipulate or state the amount of subsistence allowance which is to be paid and it has been left to the authorities to determine and deicide the same.

Learned Counsel for the Petitioner has submitted that in view of the directions given by the appellate authority, no subsistence allowance can be paid for the period 23rd May, 2007 to 2nd April, 2008. The said contention is without substance and is not supported by any rule or provision. The Petitioner is misreading the order of the appellate authority to mean that subsistence allowance has been denied for this period or the question of subsistence allowance will be decided only when the departmental proceedings are finally decided. The contention of the Petitioner cannot be accepted and accordingly we do not find any merit in the present writ petition and the same is dismissed in limine.