Dr. Dharam Paul Sharma, Member (J):
1. The applicant, a Dy. Supdt. Grade-II in Central Jail Tihar, has filed this Application under Section 19 of the Administrative Tribunals Act, 1985 praying for following reliefs :-
“8.1 To direct the respondents to release the annual increments falling on 01.07.2004, 01.07.2005, 01.07.2006 and 01.07.2007 when the applicant was under suspension and on the basis of pay so arrived recalculate the subsistence allowance and pay the arrears.
8.2 To direct the respondents to refix applicant’s pay in the wake of 6th CPC w.e.f. 01.01.2006 on the basis of pay arrived notionally after calculating the increments due on 01.07.04 and 01.07.05 and pay the arrears as a consequence thereof.
8.3 To direct the respondents to pay interest on the arrears @ 10% p.a.
8.4 Any other relief or relief(s) which the Hon’ble Tribunal may deem fit under the circumstances.”
2. The applicant was placed under suspension on 21.2.2004 by respondent no.1 in contemplation of departmental enquiry. The applicant challenged his suspension order dated 21.2.2004 as extended from time to time in OA No.1798/2005. The said OA was allowed vide order dated 17.5.2006 by holding that no review was conducted within 90 days from the date sub rules (6) and (7) of Rule 10 of CCS (CCA) Rules, came into force. The suspension was thus held illegal and consequently quashed. The applicant was retrospectively reinstated w.e.f. 30.8.2004 but again suspended w.e.f. 31.8.2006. The second suspension was revoked on 21.2.2008. The applicant was getting basic pay of Rs.7950/- at the time of his initial suspension on 21.2.2004. His pay upon reinstatement on 21.2.2008 was fixed at Rs.7950/-, the pay he was drawing on 21.2.2004. The applicant claims that he ought to have been granted initial increment issued on 1.7.2004, 1,7,2005, 1.7.2006 and 1.7.2007 and his subsistence allowance during the suspension period should have been on the basis of enhanced pay by addition of annual increments as aforesaid. The applicant made a representation in this regard on 13.6.2007. In the meantime, he came to know about the case of one Shri P.C. Mishra, DANICS official who was granted increments during the suspension period pursuant to this Tribunal order in OA No.1056/2008 decided on 7.11.2008. The applicant then made a further representation on 26.11.2008 forwarding a copy of the judgment in the case of Shri P.C. Misra. The case of Shri P.C. Mishra was unsuccessfully contested by the department in the High Court and the Hon’ble Supreme Court. The respondents have not replied to the representations of the applicant. Feeling aggrieved, he has filed the present Application wherein besides seeking directions for release of annual increments during the suspension period, the applicant has also sought direction for revision of his pay in the wake of 6th CPC’s recommendations w.e.f. 1.1.2006.
3. Opposing the applicant’s claim in their counter reply, the respondents have raised the preliminary objection on the ground of limitation contending that the Application is barred by limitation. A number of cases have been referred to in this regard. It has further been submitted that there are no specific orders in the service rules for grant of annual increments during the period of suspension unless the period of suspension is decided as duty. The disciplinary proceedings are not completed in the instant case. The period of suspension has not yet been decided. It has further been submitted that Hon’ble Supreme Court has held in Union of India vs. R.K. Chopra, 2010 (1) SCC 763, that if the revision of pay takes effect from a date prior to the date of suspension of a Government servant then he would be entitled to benefit of increment in pay and subsistence allowance for the period of suspension, but if the revision of scales of pay takes effect from a date following the period of suspension then the benefit of revision of pay and subsistence allowance will accrue to him only after reinstatement depending on the fact whether the period of suspension is to be treated as period spent on duty or not. The respondents have further submitted that the order dated 27.10.2009 issued by the Chief Secretary, Delhi, clearly states that pay of the applicant be reduced by two stages in the time scale of pay for a period of one year w.e.f. 1.11.2009 and it has further been ordered that the official will not earn increment of pay during the period of reduction and that on the expiry of the said period, the reduction will have the effect of postponing his future increments of pay.
4. At the hearing learned counsel for both the parties reiterated their averments made by them in their respective pleadings.
5. As regards limitation, the applicant has declared that Application is within limitation as this is a matter of pay fixation for which cause of action would be continuing one from month to month. Furthermore, the case of Shri P.C. Mishra based on which the applicant claims relief in this case could become final only when appeal there against was dismissed by Delhi High Court in Writ Petition (Civil) No.9042/2009 and further SLP there against was also dismissed by the Apex Court. As soon as the applicant came to know about this, he filed the present Application. Furthermore, the representations made by the applicant in the matter continue to be pending consideration with the respondents. In these premises, we do not think this Application is liable to be dismissed at the very threshold on the ground of limitation.
6. In P.C. Mishra vs. Union of India and others (OA No.1056/2008 decided on 7.11.2008), this Tribunal has held that since the increment was not being withheld on any ground by the competent authority, there appeared to be no reason why the increment due to the applicant even during the period of his suspension should not be released. While taking that view, the Tribunal has relied upon OA No.349/1990 in the matter of U. Ganga Raju vs. DRM SCR, Vijawada and others decided on 12.2.1999 wherein it has been held that it would be fit and proper to sanction increments to a government servant during the suspension period purely for the purpose of calculating subsistence allowance and payment of subsistence allowance, unless increment has been withheld by order of competent authority. The order in P.C. Mishra case has been upheld by the High Court of Delhi in CWP No.9042/2009 decided on 15.2.2010.
7. In view of the aforesaid, we are of the considered opinion that the applicant is entitled to release of annual increments from time to time for the purpose of grant of subsistence allowance. As regards, refixation of applicant’s pay in the wake of recommendations of 6th CPC w.e.f. 1.1.2006, the same needs to be dealt with in view of the Hon’ble Supreme Court decision in the case of Union of India vs. R.K. Chopra (supra). Due regard should be given in this regard to Note 3 Rule 7 of CCS (Revised Pay) Rules, 2008. Since the revision of scales of pay took effect from the date following then the period of suspension, the benefit of revision of pay and subsistence allowance would accrue to the applicant only after reinstatement depending upon the facts that whether the period of suspension is to be treated as period spent on duty or not. Though second suspension of the applicant was revoked on 21.2.2008, neither parity has brought on record what transpires thereafter how the period of suspension was dealt with and also how the pay of the applicant has been revised in the wake of 6th CPC’s recommendations. As a matter of fact, the applicant has linked up this matter with his suspension as he was under suspension when 6th CPC’s recommendations came into force. When at the hearing, learned counsel for the applicant did not point out as to how the applicant’s pay has been refixed in the wake of 6th CPC’s recommendations though a period of 5 to 6 years have elapsed since 6th CPC’s recommendations came into force. In the absence of material information in this regard, we left this matter to be pursued by the applicant in appropriate proceedings in case he still has any grievance in this regard.
8. As regards the order of penalty dated 27.7.2009 is concerned, that would not make any material difference since it would operate prospectively and would not have any bearing on the matter pertaining to the applicant’s suspension period from 2004 to 2008. Though interest on arrears has been claimed yet the applicant has neither made any averment in this Applicant nor advanced any arguments at the hearing in support of his claim.
9. After having bestowed our careful consideration to the submissions made by both the parties and having due regard to the facts and circumstances of the case, we are of the considered opinion that there is no warrant for issuance of any directions with regard to payment of interest on arrears in the facts and circumstance of the case.
10. In the facts and circumstances and for the reasons stated above, this Application is partly allowed in terms of prayer made in para 8.1 of the Application and the amount being so due and admissible to the applicant shall be released by the respondents within a period of three months from the date of receipt of a certified copy of this order. No order as to costs.