Rajeev Kumar Saxena vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A. has been filed under Section 19 of the AT Act, with the following reliefs:-

i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 10.9.2015 and further be issue a writ order or direction in the nature of mandamus directing the respondents to pay the arrears of full pay and allowances of suspension period i.e. 31.12.2009 to 14.2.2014, with all consequential benefits.

ii) issue any other writ, order or direction which is deemed fit and proper in the circumstances of the case, may also be issued in the favour of the applicant.

iii) cost of the application may be awarded in favour of the applicant.

The brief facts of the case are that the applicant was appointed on the post of Postal Assistant and further got promotion after 16 years on 12.11.2008. The applicant was suspended on 23.10.2009 and handed over the charge on 24.9.2009. Being aggrieved of the suspension order, applicant filed O.A. No. 1500/2009 before this Tribunal, which was allowed vide order dated 9.12.2009 and suspension was quashed. Respondents did not reinstate the applicant from 9.12.2009 and have also not paid any pay and allowances from 23.10.2009 to 30.12.2009. Respondents again suspended the applicant on 31.12.2009. The first suspension order dated 23.10.2009 has already been quashed by the Tribunal, the respondent again suspended the applicant on 31.12.2009. Applicant moved representation dated 2.3.2010 against the suspension order dated 31.12.2009 which was rejected by the respondents vide order dated 5.4.2010. Being aggrieved of the same, applicant filed O.A. No. 770 of 2010. During the pending of the O.A. No. 770/2010, respondents issued charge memo dated 7.7.2011 under Rule 16 of the CCS (CCS) Rules, 1965. Respondents again revoked the suspension order of the applicant on 14.2.2014 and applicant was posted as Postal Assistant, Rampur. Applicant assumed the charge on 15.2.2014. It is submitted that during the aforesaid suspension period, no formal order of review has been communicated to the applicant as per Rule 10(6) read with rule 30 of CCS (CCA) Rules, 1965. It is further stated that on 17.2.2014, applicant was again suspended. Being aggrieved of the same, applicant again filed O.A. No. 359/2014 in which interim order was passed on which basis respondents have again revoked the suspension order of the applicant on 21.5.2014. O.A. No. 770/2010 has been dismissed by this Tribunal on 21.5.2015, as having become infructuous. It is further stated that respondents have overlooked the provisions of Rule 54-B of Fundamental Rules that when the suspension order is revoked, the payment of full pay and allowances for the intervening period is automatic and compulsory.

Counter Affidavit has been filed by the learned counsel for the respondents in which it is stated that suspension order dated 23.10.2009 was set aside by this Tribunal on 9.12.2009 on technical grounds and Tribunal directed the respondents to pass fresh order. Hence the respondents passed fresh suspension order on 31.12.2009. It is further submitted that applicant was placed under suspension on 31.12.2009, which was reviewed on 22.3.2010, 10.9.2010, 3.3.2011, 16.8.2011, 10 2.2012, 5.7.2012, 18.1.2013 and 17.7.2013. The last review was valid upto 11.1.2014 and extension of his suspension was due from 12.1.2014. It is further stated that contention of the applicant that on his revocation, the payment of full pay and allowance for the intervening period is automatic and compulsory is not admitted. The disciplinary authority is under no obligation to pay full pay and allowance for the period of suspension

Heard learned counsel for the parties.

The submission of the learned counsel for the applicant is that the applicant was suspended on 31.12.2009 and suspension order was revoked on 17.02.2014. No order under Rule 54 (B) (i) fundamental Rule has been passed. The applicant has placed reliance upon the provision contained in F.R. 54-B (I) and judgment passed by this Tribunal in OA 1573 of 2014. Learned counsel for the applicant also argued that the suspension period be treated as on duty and the department concerned be directed to pay the difference amount after suspension.

Learned counsel for the respondents argued that since the present OA was pending before this Tribunal, no order as required under Rule 54-B(I) of Fundamental Rule was passed.

I have considered the rival submissions of the parties and have gone through the entire record.

From perusal of record, it is evident that applicant has earlier filed O.A. No. 770/2010 which was decided by this Tribunal on 21st May, 2015 and this Tribunal observed that once the respondents themselves have set aside the order of suspension, pursuant to the direction of this Tribunal, then the necessary consequences arising there form will follow. It is further observed that applicant is entitled for the pay and allowances for the period starting from 23.10.2009 to 30.12.2009. Respondents were directed to make payment of full pay and allowances for the period from 23.10.2009 to 30.12.2009. Applicant has again been suspension on 31.12.2009 which was revoked by the respondents on 21.5.2014 in pursuance of the interim direction passed by this Tribunal in O.A. No. 359/2014. Hence the applicant is praying for full pay and allowances of suspension period i.e. 31.12.2009 to 14.2.2014, since as per FR 54 B(1), no formal order has been passed by the respondents.

Para 54 B (1) of F.R. is 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.

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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.”

Since suspension order has been revoked by the respondents, applicant has been reinstated, respondents ought to have passed specific order regarding the pay and allowances of suspension period. Thus, in view of the position of law as discussed hereinabove, the O.A. is liable to be allowed. Impugned order dated 10.9.2015 is liable to be quashed. O.A. is allowed. Impugned order is hereby quashed. Respondents are directed to pay full salary and allowances to the applicant for the suspension period i.e. from 31.12.2009 to 14.2.2014 within a period of one month from the date of receipt of certified copy of this order.

No order as to costs.