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Judgment
Om Prakash VII, Member (J)
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
“(i) The Hon’ble Tribunal may graciously be pleased to quash the impugned orders dated 06.10.2016 (Annexure A-1) served by hand on 10.10.2017 to the applicant, dated 30.03.2017 (Annexure A-2), appellate order dated 25.07.2017 (Annexure A-3) and another order dated 20.09.2017 (Annexure A-4) with all consequential benefit viz. arrear of pay after deducting the amounts already paid as Subsistence allowance to the applicant, with 12% interest with further order and direction to the respondents to allow the applicant to discharge his normal duties as usual as well as allowed to the similarly placed persons otherwise the poor applicant would suffer an irreparable loss and injury.
(ii) Issue any other suitable order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.
(iii) To award the cost of the application in favour of the applicant”.
The brief facts of the case are that applicant was initially appointed as Postal Assistant in outsider quota in the year 1991. While working as Postal Assistant under the respondent No.5, applicant was suspended in contemplation of disciplinary proceeding vide order dated 08.07.2016 and allowed 50% payment of salary as subsistence allowance. Applicant was served with major penalty chargesheet and allowed him to submit his written statement within 10 days. Suspension review committee was convened on 06.10.2016 for extension of suspension of the applicant and on the approval of suspension review committee, suspension of the applicant was extended. Thereafter applicant submitted appeal against the order of extension of suspension order. Further by orders dated 30.03.2017 and 18/20.09.2017 suspension of the applicant was further extended. By order dated 30.10.2017, an interim protection was given to the applicant to revoke the suspension of the applicant. In compliance of the interim direction of the Tribunal, applicant has been reinstated in service on 24.11.2017 but after conclusion of enquiry, disciplinary authority has passed punishment for compulsory retirement of the applicant.
We have heard Sri S.K. Kushwaha, learned counsel for the applicant and Shri Rajpal Singh, learned counsel for the respondents and perused the record.
Submission of the learned counsel for the applicant is that applicant was suspended on dated 8.7.2016 with immediate effect but extension of suspension order was made on 06.10.2016 and thereafter on 30.03.2017 and 18/20.9.2017. It is further argued that extension of suspension was passed beyond prescribed period of 90 days; it was incumbent upon the respondents to extend the suspension before expiry of 90 days. It was next argued that period of 90 days had expired on 05.10.2016 and extension order was passed on 06.10.2016. Since suspension order dated 08.07.2016 was not extended before expiry of 90 days, thus it shall be deemed to have been revoked. Referring to the aforesaid facts, it was further argued that interim direction was allowed on dated 30.10.2017 to the applicant with a specific direction to the respondents to reinstate the applicant with immediate effect. To substantiate this argument, learned counsel for the applicant refers to the order dated 30.10.2017 passed in the matter and argued that in compliance of direction of the Tribunal, applicant was reinstated on 24.11.2017. Thereafter enquiry was concluded and applicant was compulsorily retired and he has challenged the order of compulsorily retirement in a separate OA. He further argued that no specific direction regarding treatment of the suspension period has been made by the Disciplinary Authority. Thus referring to the case law discussed in the interim order dated 30.10.2017, learned counsel for the applicant further argued that OA be allowed and consequential benefit to the applicant be given as claimed in the relief clause.
On the other hand, learned counsel for the respondents argued that suspension order was extended before expiry of 90 days by the Competent Committee constituted for the purpose on dated 06.10.2016 itself. Applicant was reinstated on 24.11.2017 in compliance of interim direction passed in the matter. Thus prayer made by the applicant regarding consequential benefits is not made out. It is further argued that after conclusion of enquiry applicant has been compulsorily retired finding him guilty to the charges framed against the applicant. Thus prayer was made to dismiss the OA.
We have considered the rival submissions advanced by the learned counsel for the parties and have gone through the entire record.
From perusal of record, it is evident that applicant while working as Postal Assistant in the respondents’ department was suspended by an order dated 08.07.2016, which was extended by orders dated 06.10.2016, 30.03.2017 and 18/20.09.2017 and thereafter in compliance of interim direction of the Tribunal, applicant has been reinstated on 24.11.2017. Applicant prayed for the payment of salary w.e.f. 05.10.2016 to 24.11.2017 as suspension has been extended after expiry of 90. Applicant stated that as per para 54 B(1) of FR, he is entitled for salary for the aforesaid period.
“9. Para 54 B (1) to (9) of F.R. are reproduced below:-
“When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) whole under suspension shall consider and make a specific order-
a. regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement) as the case may be; and
(b)whether or not the said period shall be treated as a period spent on duty.
(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.
(5) In cases other than those falling under sub-rules (2) and (3) the Government servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
(6) Where suspension is revoked pending finalization of the disciplinary or the Court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be.
(7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that, if the Government servant so desires such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
Note:- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of –
(a) extraordinary leave in excess of three months in the case of temporary Government servant; and
(b) leave of any kind in excess of five years in the case of permanent or quasi permanent Government servant.
( 8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.
(9) The amount determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53”.
In the case of Ashok Kumar Aggrawal Vs. Suniit Bose reported in LAWS (SC) 2014-2-79, Hon’ble Apex Court has held as under:-
“6. We are not able to agree with the submissions made by learned ASG as that the rule has no application to those cases where the suspension order is quashed by judicial or quasi-judicial body. Therefore,, we are of the opinion that the petitioner is entitled for his pay and other allowances w.e.f. 12th January, 2012.”
As is evident from the record, suspension order dated 8.07.2016 in any case for further 90 days should have been extended upto 5.10.2016 only. In the present matter, suspension order was firstly extended on dated 06.10.2016 on which date life of suspension order has come to an end. It is also clarified that due to non-extension of suspension order dated 08.07.2016 upto 5.10.2016, it shall be deemed that applicant’s suspension has been revoked. Thus, extension order dated 06.10.2016, 30.03.2017 and 18/20.09.2017 all are null and void. Since applicant was reinstated vide order dated 24.11.2017 in compliance of direction of the Tribunal, thus in the opinion of the Tribunal, applicant is entitled for full salary starting from 06.10.2016 till the actual reinstatement i.e. 24.11.2017.
Accordingly, the O.A. is allowed and the impugned orders dated 06.10.2016, 10.10.2017, 30.03.2017, 25.07.2017 and 20.09.2017 are hereby quashed. Respondents are directed to pay full salary and allowances deducting the subsistence allowances if already paid to the applicant for the suspension period i.e. 08.07.2016 to 24.11.2017 with other allowances and all consequential benefits, within a period of three month from the date of receipt of certified copy of this order. No order as to costs. All associated MAs are also stand disposed of.