UNION OF INDIA Vs. A U GOPI

JUDGEMENT

(1.) Aggrieved by the order of the Central Administrative Tribunal, in O.A. No. 90 of 2006 dated 03.03.2006, the Union of India and the Salt Commissioner are before this Court. O.A. No. 90 of 2006 wa.s filed by the respondent- applicant. While he was working; as the Personal Assistant to the Salt Commissioner he was placed under suspension on 26.06.1995. He was convicted in Criminal Case No. 5 of 1995 by the Special Judge CBI, Jaipur on 05.02.1997. He filed Criminal Appeal No. 63 of 1997 before the Rajasthan High Court, Jaipur Bench, and an interim order was passed on 17.02.1997, suspending both the sentence and the order of conviction. Thereafter, the petitioners herein revoked the order of suspension on 08.05.2001. When the respondent- applicant was under suspension, pay revision took place, in terms of the Vth Central Pay Commission, which came into effect from 01.01.1996. The respondent-applicant sought payment of subsistence allowance on the basis of the revised pay scales. Despite repeated reminders, no payment was made and eventually the 3rd petitioner, vide proceedings dated 04.02.2005, while drawing attention of the respondent- applicant to Order No. (2)(2)(a) under F.R.53 and note-3 under Rule 7 of CCS (R.P) Rules, 1997, informed him that the benefit of the new pay scales, would accrue to a Government Servant, in respect of the period of suspension, only after his reinstatement, depending om whether the period of suspension was treated as duty or not and that, in the present case, since he was placed under suspension prior to the revision of pay scales, he would. continue to draw subsistence allowance based oin the existing scales of pay and that his pay in the revised scales of pay would be subject to final orders in the pending disciplinary proceedings and the orc.ers of the appellate Court which was awaited.

(2.) Aggrieved by the said order dated 04.02.2005, the respondent-applicant approached the Central Administrative Tribunal, Hyderabad. The Tribunal, by order dated 03.03.2006, allowed O.A. No. 90 of 2006 following the order of the Full Bench of the Mumbai bench of the Central Administrative Tribunal in J.S,, Kharat Vs. Union of India1. The Tribunal held that the respondent-applicant was entitled to get his subsistence allowance on the basis of the revised pay scales which came into effect during the suspension period and that the decision of the respondents, (petitioners herein), could not be acted upon. The Tribunal quashed the impugned order dated 04.021.2005 and directed the petitioners herein to pay the respondent-applicant arrears of subsistence allowance on the basis of the revised pay scales within a period of two months from the date of communication of the order.

(3.) Sri A. Rajasekar Reddy, learned Assistant Solicitor General, would submit that since the revised pay scales, in terms of the Vth Central Pay Commission, came into effect from 01.01.1996 after the petitioner was placed under suspension on 26.06.1995, he was not entitled for payment of subsistence allowance on the basis of the revised pay scales. Learned Assistant Solicitor General would place reliance on FR-53, FR-23 and the executive instructions issued in O.M. No. F.2 (36)-Establishment III 58, dated 27.08.1958, in support of his submission that it is only if the period of suspension of the respondent-applicant is treated as on duty would he be entitled for the benefit of payment of subsistence allowance on the basis of the revised pay scales. According to the Learned Assistant Solicitor General, this exercise could be carried out by the petitioners herein only after the Criminal Appeal, still pending before the Rajasthan High Court, was disposed of. Sri K. Srinivasamurthy, learned Counsel for the respondent-applicant, on the other hand, would submit that FR-53 read with FR-23, and the executive instructions issued on 27.08.1958, have no application. Learned Counsel would submit that once his period of suspension is treated as on duty, the respondent-applicant would then be entitled for payment of the differential amount between the full salary and allowances payable to an employee minus the subsistence allowance already paid to him. According to the learned Counsel, while payment of full salary and allowances, on the basis of the revised pay scales which came into force after an employee was placed under suspension, is governed by the office memorandum dated 27.08.1958, in so far as payment of subsistence allowance is concerned, since the amount is paid for an employee to subsist/ survive during the period of his suspension, and as the subsistence allowance is paid only as a percentage of the full pay and allowances, to which an employee on duty is eligible, any revision in pay scales, after an employee is placed under suspension, must automatically result in revision of the subsistence allowance also. Learned Counsel would place reliance on Swarnamba B.R. Vs. Karnataka State Agricultural Marketing Board (Karnataka High Court), 1988 (2) SLR 541 P.L, Shah Vs. Union of India, AIR 1989 SC 985 Umesh Chandra Misra Vs. Union of India4 and R.P. Kapur Vs. Union of India*.