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PER: Hon'ble Shri Jayesh V. Bhairavia, Member (J) 1 By way of filing instant OA under Section 19 of AT Act 1985, the applicant seeking relief for quashing and setting aside orders (i) Memo No.B2/DJS/2019 dated 22.03.2019 (Annexure A/1)- order of suspension, (ii) Memo No.B2/Suspn/DJS/2019 dated 26.06.2019 (Annexure A/2) - continuation of subsistence allowance @ 25% from 17.06.2019 to 16.12.2019 & (iii) Memo No.B2/Suspn/DJS/2019 dated 17.12.2019 (Annexure A/3) - continuation of subsistence allowance @ 25% from 17.12.2019 to 13.06.2019, also sought a direction to respondents to reinstate the applicant in service with all consequential benefits including arrears of pay with 12% interest and a direction to the respondents to pay the difference of
25% subsistence allowance from 22.03.2019 till 21.09.2019. 2 The brief facts as stated by the applicant are as under:-
The applicant joined the respondent department as Postal Assistant on 07.02.2011. On 22.03.2019 (Annexure A/1) order, the applicant was placed under suspension under sub-Rule (1) of Rule 10 of CCS (CCA) Rules 1965 with subsistence allowance @ 25%.
The suspension order dated 22.03.2019 was required to be reviewed within 90 days of its issuance but on review of the same on 26.06.2019, the period of suspension period of extension was extended for a further period of 180 days w.e.f. 17.06.2019 to 16.12.2019. On further review of the same on 17.12.2019, the suspension was extended by 180 days upto 30.06.2020.
The applicant was being paid subsistence allowance at the rate 25% of his pay from the date of suspension. For the first three month period, the applicant was paid DA alongwith 25% subsistence allowance. Thereafter, respondents stopped paying DA and only Rs.9,000/- was paid though the applicant was drawing a monthly salary of Rs.40,000/- at the time of suspension.
A Charge Memorandum dated 24.05.2019 (Annexure A/4), was issued by the department to the applicant with an allegation to the effect that the applicant had
misappropriated an amount of Rs.75,399/-. 2.5 The applicant vide his reply dated 06.06.2019 denied the charges and prayed for time to respond to the Charge Memorandum. The department without considering the same proceeded with the departmental inquiry by appointing Inquiry Officer and Presenting Officer (Annexure A/5). By two separate orders dated 25.06.2019 the respondent department appointed
Inquiry Officer and Presenting Officer. (Annexure A/6). 2.6 Inquiry was held on 30.07.2019, 26.09.2019 and 28.11.2019. The applicant participated in the inquiry on all the three occasions (Annexure A/8, A/9 & A/10). While the inquiry was going on, on 05.10.2019, the applicant requested for certain documents from the Inquiry Officer (Annexure A/7). The last date of inquiry was 28.11.2019 and thereafter it has not proceeded further.
As the suspension period was continuing even after expiry of 90 days from 22.03.2019, without being reviewed and only 25% of subsistence allowance is being paid since the beginning of suspension on 22.03.2019 and hence applicant has approached this Tribunal by filing the instant OA.
3 The main contentions raised by the learned counsel for applicant are as under:-
As per Rule 10(6) of the CCS (CCA) Rules, 1965, suspension order is required to be reviewed within 90 days of its issuance. As stated above, in the present case, suspension order was issued on 22.03.2019 and the same was to be reviewed on or before 21.06.2019, but said suspension order was reviewed only on 26.06.2019, there was a delay of six days in reviewing the suspension order dated 22.03.2019. Therefore the suspension order dated 22.03.2019 is nonest from 21.06.2019. Since the suspension order dated 22.03.2019 is nonest from 21.06.2019, the subsequent orders dated 26.06.2019 and 17.12.2019 will be without any authority and hence the department cannot act upon the same. In this regard, Learned Counsel Mr. Mathew placed reliance on the judgment passed by Hon'ble Apex Court in the case of UOI & Ors. Vs. Dipak Mali, reported in (2010) 2 SCC 222, 3.2 Learned Counsel Mr. Mathew further submitted that once the charge memorandum is served upon a delinquent the department is required to issue a reason order for extension of suspension. In the present case, the charge memorandum was served upon applicant on 24/05/2019. Therefore, firstly, there was no need to continue the suspension and secondly, even if the department wants to continue the suspension, the department should have passed a reasoned order. In support of his submission he placed reliance on the order dated 10/08/2017 passed in OA No.1623/2017 by Principal Bench of CAT (Ann. A/12).
It is submitted that as per Provision prescribed in Rule 52 of the Fundamental Rules, a suspended employee is entitled to get 50% of his salary as subsistence allowance for six months from the date of suspension. Thereafter, the delinquent is entitled to 100% salary with DA if the inquiry is not proceeded without the fault of the delinquent. In the present case, the Inquiry Officer had fixed 3 days for inquiry and all these three occasions the applicant participated in the inquiry. Therefore, the department cannot attribute anything against the applicant for the delay of the inquiry and as a result, the applicant is entitled 100% salary after six months of his suspension as per provision contained in Rule 52 of the Fundamental Rules.
It is submitted that department is require to review the suspension order within 90 days of issuance. However, the respondent is failed to follow the time limit prescribed under the Statutory Rules. Hence, the impugned order is bad in law and applicant is entitled for relief sought in OA.
Per contra, the respondent has denied the claim of applicant by filing their reply. Learned Counsel Ms. R. R. Patel for the Respondent mainly submitted as under:-
The applicant was working as Postal Assistant (hereinafter referred to as "PA"), Surendranagar, HO w.e.f. 17/08/2015 to 22/03/2019. The Sub- Divisional Inspector (Post) North Sub-division, Surendranagar, had visite, Surendranagar Head Post Office for verification of genuineness of cancelled transaction/receipt of PLI/RPLI premium collection in McCamish Software, whereupon, he had found some suspicious cancellation transactions made by the applicant.
Therefore, the SDI (P) had made detailed inquiry and found that while working on MPCM counter, the applicant had accepted Postal Life Insurance Premium from the customers on behalf of the Government by issuing receipts of amount collected from the customer and affixed that receipt in the premium receipt book of the customer but at the end of day, the applicant had cancelled the said premium collection receipt in the McCamish Software and not credited the premium amount collected from the PLI Customer into Government account and thereby, misappropriated of Rs.3,24,173/- Government Money by misusing his official capacity. Subsequently, the applicant herein voluntarily had credited an amount of Rs.5,50,000/- (Rupees Five Lakh Fifty Thousand Only) in GL Code- 8855300100 along with his application dated
15/03/2019. 4.3 Therefore, the applicant was placed under suspension w.e.f 22/03/2019 A/N vide order dated 22/03/2019. Consequently, disciplinary proceedings were initiated under Rule 14 of the CCS (CCA) Rules, 1965 and the charge memorandum issued on 24/05/2019 which was delivered on
29/05/2019. The said departmental inquiry is under progress. 4.4 The case of applicant was reviewed by the review committee on 17/06/2019 for the purpose of reviewing his suspension and subsistence allowance for a further period of 180 days. The decision taken by the review committee was communicate to the applicant / Charge Officer vide office memo dated 26/06/2019. Thereafter, the second review was carried out by the committee on 13/12/2019 in context of further period of 180 days and the said decision was informed to the applicant by memo dated 17/12/2019 (Ann. A/2
and Ann. A/3 to the OA). 4.5 It is submitted that the OA is premature, since the applicant had approached this Tribunal without preferring any representation / appeal before the Competent Authority.
It is not correct on the part of the applicant to alleged that his case was reviewed by review committee after the completion of 90 days of his suspension. In fact, case was reviewed by the review committee on 17/06/2019, i.e., before completion of 90 days from the date of initial order of suspension. In this regard Ld. Counsel Ms. R. R. Patel placed reliance on minutes of review committee of suspension case held on 17/06/2019 along with the communication of decision of review committee vide letter dated 24/06/2019 (Ann. R/1 Colly.). 4.7 It is submitted that before
completion of extended suspension period the review committee had again consider the case of the applicant in their meeting held on 13/12/2019 and recommended the suspension of the applicant for a further period of 180 days. The said decision dated 13/12/2019 was communicated by Assistant Director (Staff and Vigilace) O/o PG, Rajkot Region to the Supdt. of Post Office, Surendranagar Division vide letter dated 16/12/2019 (Ann. R/2). In turn, the Supdt. of POs, Surendranagar vide his letter dated 17/12/2019 (Ann. A/3) informed the applicant about the decision of review committee for further extension of his suspension period. Therefore, it is not correct on the part of the applicant to state that his case was not reviewed by the review committee within the time limit prescribed in the CCS (CCA) Rules.
Learned Counsel for the respondent submits that applicant was paid the subsistence allowance @25% along with DA from the date of suspension. The copies of pay slips of the applicant for the month of March-2019 to December-2019 duly signed by the DDO (Ann. R/3) clearly established the fact that the applicant has been paid subsistence allowance @25% along with DA from the date of his suspension. Therefore, it is not correct on the part of the applicant for not receipt of admissible subsistence allowance.
Learned Counsel for the respondent further submits that the applicant has either mislead of interpreting the provision of Rule 52 of the Fundamental Rules. As such, in Rule 52 it is stipulated that "The pay and allowance of a government servant dismissed or removed from service cease from the date of such dismissal or removal." In the present case, ex-facie the said Rule is not applicable. Therefore, the applicant is not entitled for the relief sought in this OA.
The applicant has filed the rejoinder and reiterated his submissions made in the OA. Additionally, it is submitted that it is an admitted position that the decision to extend the suspension of applicant was communicated to him only on 26/06/2019. In fact, the suspension was ought to have reviewed on or before 22/03/2019 and also communicated on or before completion of 90 days on or before suspension. Further, as per provision of Rule 23 of the CCS (CCA) Rules, it is not mandatory to prefer an appeal against the suspension. As such, the option given to employee whether he want to make an appeal or not.
It is submitted that by considering various judgments passed by various Bench of CAT as well as judgment passed by Hon'ble High Court of Rajasthan, the Jabalpur Bench of this Tribunal in OA No.525/2016, it was held therein that communication of the outcome of the meeting of reviewing committee should be communicated to the delinquent employee within 90 days. It is further held therein that order of extension of revocation once passed is also required to be communicated to the employee before expiry of 90 days. It is only then the life of original suspension order gets validity extended by further period. The communication of extension of suspension period is not an empty formality but is a mandatory requirement. Therefore, in the present case, the respondent failed to communicate the decision of review committee before completion of 90 days of initial suspension. Hence, the impugned order of suspension of the applicant required to quashed and set aside.
On behalf of respondent, Ld. Counsel Ms. R. R. Patel placed reliance on order dated 13/09/2017 passed by Hon'ble High Court of Delhi in W.P. (C) 8134/2017 Govt. of NCT of Delhi Vs. Dr. Rishi Anand and submits that the respondent has reviewed the case of the suspension of applicant before completion of his suspension period and had further extended the it within time limit. Therefore, the suspension cannot be lapse automatically as claimed by the applicant.
We have heard Ld. Counsel for the parties at length and perused the material on record.
It is noticed that while applicant was working as Postal Assistant at Surendranagar HO, a disciplinary proceeding was contemplated against him. Therefore, the respondent no.3, i.e., Superintendant of Post Offices, Surendranagar by exercising its power conferred by Sub-rule 1 of Rule 10 of CCS (CCA) Rules, 1965 placed the applicant under suspension vide impugned order dated 12/03/2019 by allowing subsistence allowance @25%. It is also noticed that he was served with charge memorandum dated 24/05/2019 in terms of Rule 14 of CCS (CCA) Rules. On denial of charges by the applicant, the disciplinary authority had initiated the departmental inquiry against him and same is stated to be in progress.
It is grievance of the applicant in the present OA that the respondent had not reviewed his case within prescribed time limit of 90 days as also he was not informed the decision of review committee before completion of his initial suspension period. Therefore, according to the applicant, continued suspension will stand lapsed automatically. Further the extension of suspension is also vitiated.
To appreciate the submissions of applicant it is appropriate to refer relevant provision of Rule 10 CCS (CCA) Rules, 1965 which prescribes the procedure to place a government servant under suspension. It is noticed that Rule 10(1) permits the authority to place a government servant under three categories (a) where the disciplinary proceedings against him is contemplated or is pending or (aa) when, in the opinion of disciplinary authority the Government Servant has engaged himself in activities prejudicial to the interest of security of the State, or (b) where, a case against him in respect of any criminal offence is under investigation, inquiry or trial.
In the present case, the suspension has been ordered under Clause (a) of Sub-rule (1) of Rule 10, as the disciplinary proceedings were contemplated against the applicant and the same is in progress. Further, Sub-rule (5), (6) and (7) of the Rule 10 stipulates the condition for continuance of the suspension or its modification as also its expiry. The said Sub-rules reads as under :-
Rule 10(5) "(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so."
(b)Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.
(c)An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
Rule 10(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.
Rule 10(7) An order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days: Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later.
11 From the aforesaid rule position as laid down, it can be seen that after the initial suspension period of 90 days w.e.f. 22.03.2019, thereafter the case of applicant was reviewed by review committee on 17.06.2019 for the purpose of reviewing his suspension and subsistence allowance for a further period of 180 days i.e. before expiry of 90 days. The said decision of review committee dated 17.06.2019 was conveyed to the applicant vide letter dated 24.06.2019. Thereafter, again before completion of 180 days, the review committee met on 13.12.2019 and recommended for continuing the suspension for further period of 180 days with the same subsistence allowance @ 25% till 13.06.2020 since disciplinary proceedings was still continuing. The said decision for grant of subsistence allowance conveyed to the applicant vide order dated 17.12.2019 which is also impugned in the present OA. It can be seen that the reviewing committee has reviewed the case of applicant for extension of period of suspension before expiry of its specified time in terms of Rule 10, (5) & (6) of CCS (Pension) Rules. In view of this factual matrix, the grievance raised by the applicant that the respondents had reviewed the initial suspension period after expiry of first 90 days is not tenable. So far as grievance of applicant regarding non enhancement of subsistence allowance is concerned, the competent authority recorded its reason that disciplinary proceedings initiated against him and there is no need to vary the subsistence allowance during the suspension period of applicant. We do not find any reason to interfere with the decision of administration as same cannot be contravened any statutory provisions of rules. The judgment relied upon by the counsel for the applicant in our considered view also is of no help.
At this stage, we feel it appropriate that since the applicant has been under suspension w.e.f. 22.03.2019 with 25% subsistence allowance and the said suspension if continued till date, with 25% subsistence allowance,. in that case, it is directed that the review committee at the time of next review, if it is decided to extend the suspension, then said committee shall consider the claim of applicant for enhancement of subsistence allowance payable to him in accordance with rules and the material on record.
12 In view of above discussions and the observations made in para 11 above, the OA stands disposed of. No order as to costs.