Ram Tirath Pandey S/O Shri Devi Vs. Union of India (Uoi) Through the - Court Judgment

Excerpt:
2. as regards the request of the applicant directed against an order passed by the respondents imposing upon him a major penalty on 27.2.2002 and also appellate order dated 24.9.2003, learned counsel for applicant forgoes this part of relief and maintains this oa only on the question of treatment of the suspension period as not spent on duty except for pensionary benefits.3. a long history of the present case transpires that the applicant while working as mate in the dms was subjected to a disciplinary proceeding, which on culmination into a punishment of compulsory retirement, was assailed before the tribunal in oa-1842/1994. an order passed by the division bench of this tribunal on 5.8.1999 set aside of the order with liberty to the respondents to proceed further on violation of rule 14(18) of ccs (cca) rules. accordingly, on resumption of the inquiry on a disagreement and on receipt of the representation of the applicant, a major penalty imposed when affirmed in appeal also gives rise to the order passed by the respondents on 19.4.2002 whereby a show cause notice served upon the applicant as to the treatment of suspension period from 19.1.1993 to 25.12.2001 on response of the applicant culminates into treatment of the period to the extent of restricting it to the subsistence allowance already paid and treating the aforesaid period as spent on duty only for the purpose of pensionary benefits.4. learned counsel for applicant states that the aforesaid order has greatly prejudiced him as the period of suspension not being treated as duty would entail loss to increments, efficiency bar, seniority and other consequential benefits.5. on the other hand, learned proxy counsel for respondents states that the aforesaid period has been treated under the rules rightly as not spent on duty as the applicant has been inflicted upon a major penalty and moreover, it is stated that having taken a lenient view to treat the aforesaid suspension period as qualifying service, the pension of the applicant would not be affected in any manner.6. we have carefully considered the rival contentions of the parties and perused the material on record. though suspension is not a punishment, yet it sometimes operates in its severity more than a punishment. treatment of suspension as not spent on duty not only entails loss of seniority for the purpose of future progression of a government employee but also his increments, efficiency bar and other financial benefits.7. fr 54-a envisages procedure to operate and regulate suspension period when the penalty of compulsory retirement is set aside by the court of law. the only exception when the respondents have liberty to issue a show cause notice and to decide the period as per their discretion keeping in view the circumstances of the case when the court has set aside the order on violation of article 311(1)(2) of the constitution of india. fr 54 a (3) provides as under: (3) if the dismissal, removal or compulsory retirement of a government servant is set aside by the court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.8. if one has regard to the above, when the penalty of compulsory retirement was set aside by the court on merits of the case, the period intervening from the date of compulsory retirement till the reinstatement has to be necessarily treated as spent on duty for full pay and allowances.9. from the perusal of the order passed by the tribunal (supra), we find that the punishment has been set aside for violation of rule 14(18) of the ccs (cca) rules, 1965, which is to be construed in law as on merits. in such an event, non-treating the period of suspension as not spent on duty is not sustainable.10. in the result, for the foregoing reasons, oa is partly allowed.impugned order is set aside. matter is remitted back to the respondents to take a decision as to the suspension period of the applicant from 19.1.1993 to 25.12.2001 being treated for other purposes also keeping in view strictly our observations above, by a reasoned and speaking order to be issued within two months from the date of receipt of a copy of this order. it, however, goes without saying that in such an event all the consequences would follow. no costs.

Judgment:
2. As regards the request of the applicant directed against an order passed by the respondents imposing upon him a major penalty on 27.2.2002 and also appellate order dated 24.9.2003, learned Counsel for applicant forgoes this part of relief and maintains this OA only on the question of treatment of the suspension period as not spent on duty except for pensionary benefits.

3. A long history of the present case transpires that the applicant while working as Mate in the DMS was subjected to a disciplinary proceeding, which on culmination into a punishment of compulsory retirement, was assailed before the Tribunal in OA-1842/1994. An order passed by the Division Bench of this Tribunal on 5.8.1999 set aside of the order with liberty to the respondents to proceed further on violation of Rule 14(18) of CCS (CCA) Rules. Accordingly, on resumption of the inquiry on a disagreement and on receipt of the representation of the applicant, a major penalty imposed when affirmed in appeal also gives rise to the order passed by the respondents on 19.4.2002 whereby a show cause notice served upon the applicant as to the treatment of suspension period from 19.1.1993 to 25.12.2001 on response of the applicant culminates into treatment of the period to the extent of restricting it to the subsistence allowance already paid and treating the aforesaid period as spent on duty only for the purpose of pensionary benefits.

4. Learned Counsel for applicant states that the aforesaid order has greatly prejudiced him as the period of suspension not being treated as duty would entail loss to increments, Efficiency Bar, seniority and other consequential benefits.

5. On the other hand, learned proxy counsel for respondents states that the aforesaid period has been treated under the rules rightly as not spent on duty as the applicant has been inflicted upon a major penalty and moreover, it is stated that having taken a lenient view to treat the aforesaid suspension period as qualifying service, the pension of the applicant would not be affected in any manner.

6. We have carefully considered the rival contentions of the parties and perused the material on record. Though suspension is not a punishment, yet it sometimes operates in its severity more than a punishment. Treatment of suspension as not spent on duty not only entails loss of seniority for the purpose of future progression of a government employee but also his increments, Efficiency Bar and other financial benefits.

7. FR 54-A envisages procedure to operate and regulate suspension period when the penalty of compulsory retirement is set aside by the Court of law. The only exception when the respondents have liberty to issue a show cause notice and to decide the period as per their discretion keeping in view the circumstances of the case when the Court has set aside the order on violation of Article 311(1)(2) of the Constitution of India. FR 54 A (3) provides as under: (3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.

8. If one has regard to the above, when the penalty of compulsory retirement was set aside by the Court on merits of the case, the period intervening from the date of compulsory retirement till the reinstatement has to be necessarily treated as spent on duty for full pay and allowances.

9. From the perusal of the order passed by the Tribunal (supra), we find that the punishment has been set aside for violation of Rule 14(18) of the CCS (CCA) Rules, 1965, which is to be construed in law as on merits. In such an event, non-treating the period of suspension as not spent on duty is not sustainable.

10. In the result, for the foregoing reasons, OA is partly allowed.

Impugned order is set aside. Matter is remitted back to the respondents to take a decision as to the suspension period of the applicant from 19.1.1993 to 25.12.2001 being treated for other purposes also keeping in view strictly our observations above, by a reasoned and speaking order to be issued within two months from the date of receipt of a copy of this order. It, however, goes without saying that in such an event all the consequences would follow. No costs.