Nagachandran Vs. Union of India Through the Secretary, Ministry of Statistics and Programme Implementation, Sardar Patel Bhawan, Sansad Marg, New Delhi and Another - Court Judgment

Mrs. Meera Chhibber, Member (J)

1. The applicant joined the Indian Statistical Service on 05.05.1999. He was promoted to the Senior Time Scale on 22.09.2005. He was placed under suspension on 04.08.2009. The suspension order was revoked on 13.08.2010.

2. The applicant has filed this O.A. with the following prayer:-

“8.1 to allow the present application;

8.2 to quash the impugned Order of Revocation of Suspension (Annexure : A-1) as bad in law inasmuch as it is detrimental to the Applicant;

8.3 to declare that the period spent by the Applicant on suspension (04.08.2009 to 13.08.2010) should be treated as duty for all purposes;

8.4 to direct the Respondent Ministry of Statistics and Programme Implementation to pay the Applicant full salary for the periods spent by the Applicant on suspension (04.08.2009 to 13.08.2010) immediately;

8.5 to direct the Respondent Ministry to pay the Applicant interest @18% per annum, compounded monthly, on the arrears of pay that is due to the Applicant from the date the amount was due;

8.6 to direct the Respondent Ministry to order an inquiry into the conduct of Respondent No.2, who has been illegally misusing his position to personally harm the Applicant;

8.7 to issue any such and further order/directions this Hon’ble Tribunal deems fit and proper in the circumstances of the case; and

8.8 to allow exemplary costs of the application.”

3. The suspension order (Annexure A-2) was issued on 04.08.2009 in contemplation of disciplinary proceedings against the applicant. The applicant filed OA-1488/2010 challenging the suspension order which was decided on 25.10.2010 with the following observations:-

“18. In view of above, it cannot be stated that applicant was suspended due to any malice or his continued suspension was without any valid reason. We, therefore, find no good ground to interfere in this case. However, before we part, we would like to direct the respondents to issue the charge sheet at the earliest, i.e., within 4 weeks so that applicant may defend himself and matter may be taken to a logical conclusion.

19. With the above direction, this OA stands disposed of. No order as to costs.”

However, before the O.A. was decided, the suspension order was revoked on 13.08.2010. The present O.A. was filed on 28.04.2011 and notice was issued to the respondents on 02.05.2011. Before filing of this O.A., the competent authority passed an order (vide Memorandum dated 21.03.2011) initiating disciplinary proceedings under Rule-14 of the Central Civil Services (CCA) Rules, 1965 against the applicant asking him to submit his written statement of defence within ten days from the date of receipt of a copy of the Memorandum. Thereafter, a notice was issued vide Office Memorandum dated 07.07.2011 under Sub-Rule (5) of FR 54-B intimating the applicant the proposal to limit his pay and allowances to the subsistence allowance already granted to the applicant during the period of suspension keeping in view the pendency of disciplinary proceeding against him. He was asked to make his representation, if any, to the proposed order. Since no representation was received, he was asked once again on 19.08.2011 (Annexure R-7) to submit his representation to the aforesaid notice within a period of ten days from the date of receipt of that O.M. The applicant filed his representation on 01.09.2011 requesting the respondents to withdraw the show cause notice. Finally, the respondent authorities vide their order dated 18.10.2011 (page-157) considered his representation and held that the judgment of the Hon’ble High Court cited by the applicant related to a case of abnormal delay in issue of chargesheet and similar delay in treatment of the suspension period. It was further observed that factually the case of the applicant was distinguishable. In the aforesaid premise, it was decided to limit the pay and allowances of the applicant during the period of his suspension to what was paid to him by way of subsistence allowance and further to treat the period of suspension as such till disciplinary proceedings initiated against him were finalized.

4. The O.M. relating to show cause notices dated 07.07.2011 and 19.08.2011 and the final order dated 18.10.2011 have not been challenged in this case.

5. At the time of hearing, the applicant, who appeared in person, submits that the suspension order was revoked on 13.08.2010; by then, the disciplinary proceedings against him had not been initiated. Following the ratio of the Hon’ble Supreme Court in the case of U.O.I. Etc. Etc. Vs. K.V. Jankiraman Etc. Etc., 1991(4)SCC 109 a disciplinary proceeding can be stated to have been initiated from the date of issue of the chargsheet which in his case was on 21.03.2011. Therefore, FR-54(B)(1) was applicable to his case. In this connection, he places reliance on the judgment of the Co-ordinate Bench (Guwahati) of this Tribunal in the case of OA-3/1985 (S.M. Rahman Vs. The State of Assam and others), decided on 01.03.1986 to contend that inaction on the part of the respondent authority in passing the order under FR-54 (B) amounted to malice in law.

5.1 He relies on the judgment of the Hon’ble High Court of Delhi in the case of Hira Lal Vs. D.D.A., 1995 Lab IC 2196 to say that Sub-Rules 3 and 5 under FR 54(B) are not applicable in his case as the suspension was not revoked after finalization of disciplinary proceedings, but before initiation of disciplinary proceedings. Emphasizing the observations made in paragraphs 8 and 9 of the judgment of the Hon’ble High Court, he claims that his case should be covered under FR-54(B)(1) not under Sub-Rule-5.

5.2 The second ground taken by him is that since the O.A. was admitted on 02.05.2011 by issuing notices to the respondents they could not have taken any further action in respect of the subject matter of litigation in view of the specific provision of the Section 19(4) of the Administrative Tribunals Act, 1985 enjoining abatement of all further proceedings till finalization of the O.A. Thus, according to him, O.M. dated 07.07.2011 and 19.08.2011 and the final order dated 18.10.2011 are invalid.

5.3 Drawing attention to the report of Shri Hegde Respondent No.2 (Page-123) he submits that Sh. V.R. Hegde had characterized him as the co-applicant in several cases filed by Sh. T.R. Mohanty and also had alleged that the applicant was assisting Shri Mohanty at the time when the assault against Sh. Hegde took place. On that basis, he allges malafide against Sh. Hegde who has been impleaded as a respondent by name.

5.4 He also alleges fraud and misrepresentation of facts about him by the officials in their notes placed before the Disciplinary Authority, which were responsible for the issuance of the suspension order against him.

6. Learned counsel for the respondents, on the other hand, submits that the O.A. filed by the applicant challenging the suspension order has been decided against him. The plea of malice taken by he applicant in that O.A. has been rejected. Therefore, it does not lie with the applicant to raise the same very issue in the present O.A. He also submits that the cases cited by the applicant are distinguishable. In any case, the respondent authorities had passed the Office Memorandum dated 7.7.2011/19.8.2011 and 18.10.2011 when no specific order was passed by the Tribunal admitting the O.A. Therefore, the Memoranda containing the show cause notice and the final order cannot be stated to have abated as suggested. He further submits that the applicant has not challenged the final order dated 18.10.2011 by which the Disciplinary Authority has communicated its view on how to treat the period of suspension. In the absence of any such challenge, this O.A., he contends, has become infructuous. The OA is thus liable to be dismissed on this ground alone.

7. We have heard applicant, who appeared in person and also counsel for the respondents.

8. It is seen applicant has challenged order dated 13.8.2010 whereby his suspension was revoked. He has sought that he be paid the full salary for the period of suspension from 4.8.2009 to 13.8.2010 along with interest @ 18% per annum by treating the period of suspension as spent on duty whereas respondents had issued 2 notices to the applicant the Ist one on 7.7.2011 (page 79) calling upon him to give reply within 10 days from the date of receipt of the office memorandum nor as to why the pay and allowances admissible to him be limited to the subsistence allowance already granted to him during the period of suspension in view of the fact that a major penalty charge-sheet has been issued vide memorandum of even number dated 21.3.2011 and inquiry proceedings have been initiated with the appointment of Inquiry Officer and Presenting Officer vide orders of even number of even number dated 2.5.2011. It seems no reply was given by the applicant so another chance was given to him to give his reply by enclosing the OM dated 7.7.2011 (page 103).

9. At this stage, applicant gave his reply on 1.9.2011 by stating that FR 54-B (5) has no application and O.M. dated 7.7.2011 is bad in law in view of Section 19 (4) of the A.T. Act as he had already filed OA 1601/2011. After considering his reply, respondents passed final order on how to decide the period of suspension dated 18.10.2011 (page 157) which reads as under:

“ORDER

Shri E. Nagachandran, Dy. Director was suspended vide order dated 4.8.2009 which was revoked with effect from 12.8.2010 vide order dated 13.8.2010. After revocation of suspension of Shri E. Nagachandran, the Competent Authority in the month of September, 2010 and had considered the matter regarding treatment of suspension period for the purpose of Pay and Allowances and whether or not the period shall be treated as period spent on duty. The Competent Authority taking into consideration the provisions of FR-54B (6), decided that the period may be treated as suspension till the disciplinary proceedings are finalized.

Shri Nagachandran, Dy. Director filed OA 1601/2011 in CAT Principal Bench, New Delhi regarding treatment of period of suspension. The matter was examined in detail. Since Major Penalty charge-sheet has been issued to Shri E. Nagachandran, Dy. Director, his case is covered under provisions of FR-54-B (5). Accordingly, Shri Nagachandran was requested vide OM dated 7.7.2011 to make representation as stipulated in FR-54-B )5).

Shri Nagachandran, Dy. Director, instead of making representation served advance copy of MA in OA No.1601/2011 in CAT Principal Bench praying for stay on the operation of OM dated 7.7.2011. Shri Nagachandran was once again requested vide OM dated 19.8.2011 to make representation within a period of 10 days. Shri E. Nagachandran submitted his representation vide letter dated Ist September, 2011.

Shri Nagachandran in his representation has made reference to the issues/matters that are not connected with the case and he also enclosed an unauthenticated copy of judgment of Hon’ble High Court of Delhi. Even the judgment enclosed with the representation of Shri Nagachandran bears no similarity with his case because the judgment in the said case has been made in exceptional circumstances related to abnormal delay in issue of charge-sheet and delay in order of treatment of suspension period. In the case of Shri Nagachandran there is no such similarity, as after revocation of suspension, the disciplinary authority decided about treatment of the period of suspension within a month of revocation of suspension, as mentioned earlier. The Major Penalty charge-sheet has also been issued to Shri Nagachandran vide Memorandum dated 21.3.2011. Thereafter, Shri Nagachandran has been given an opportunity to make representation. However, Shri Nagachandran, instead of making submission on his behalf, tried to get a stay on the operation of OM itself.

As no stay has been granted, the Competent Authority, after taking into consideration the above facts, has decided to limit the Pay and Allowances during the period of suspension of Shri Nagachandran to that of subsistence allowance already paid to him and that the period of suspension shall be treated as suspension till the disciplinary proceedings are finalized. The Competent Authority has also decided that the regularization of the period of suspension can await final decision on the charge-sheet”.

10. This order has not been challenged even though by this order competent authority has decided that for the time being full pay and allowances cant be given to the applicant as major penalty charge-sheet has been issued so regularisation of period of suspension can await the final decision on the charge-sheet.

11. Since this order has been passed after the filing of the O.A. on 28.04.2011, it makes the O.A. infructuous and he ought to have challenged this order.

12. Applicant, who appeared in person, strenuously argued that since in this O.A. notice was issued on 02.05.2011, the order dated 18.10.2011 is not valid in law in terms of Section 19(4) of the A.T. Act 1985.

13. In order to deal with this contention Section 19 has to be read with Section 24 of the Administrative Tribunals Act and Rule 11 of the Central Administrative Tribunal (Procedure) Rules 1987. Rule 11 deals with service of notice and how it is to be effected. Rule 11 (8) further clarifies as follows:-

“Notwithstanding anything contained in sub-rules (1) to (4), if the Tribunal is satisfied that it is not reasonably practicable to serve notice of application upon all the respondents, it may, for reasons to be recorded in writing, direct that the application shall be heard notwithstanding that some of the respondents have not been served with notice of the application:

Provided that no application shall be heard unless:

(i) notice of the application has been served on the Central Government or the State Government if such Government is a respondent;

(ii) notice of the application has been served on the authority which passed the order against which the application has been filed; and

(iii) the Tribunal is satisfied that the interests of the respondents on whom notice of the application has not been served are adequately and sufficiently represented by the respondents on whom notice of the application has been served.”

Meaning thereby that as per Rule 11 (Supra), the 1st step after the O.A. is listed is, to issue notice to the respondents.

14. Section 24 of the Administration Act further confirms this position as it reads as under:

“24. Conditions as to making of interim orders. Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless--

(a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made; and

(b) opportunity is given to such party to be heard in the matter:

Provided that a Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order.”

Meaning thereby that notice is the 1st Step in normal course, proviso is only an exception to Section 24 of the A.T. Act, 1985.

15. Section 19 has to be read in this context. Sub-section (3) of Section 19 is important as it precedes sub-section (4) of Section 19 of the Administrative Tribunals Act, 1985 which for ready reference reads as under:-

“(3) On receipt of an application under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons”.

16. Perusal of above sub-section shows that application can be admitted only after making enquiry to see whether it is a fit case for adjudication or trial which indicates there is process of enquiry before admitting the case which enquiry is done by issuing notice at the Ist instance. In the instant case when OA was listed for the first time in court on 2.5.2011 only notice was issued. The case was finally admitted only on 13.2.2012 whereas order of respondents as to how period of suspension should be treated was passed on 18.10.2011, i.e. before the OA was admitted, therefore, Section 19 (4) would not be attracted in this case.

17. Section 19 (4) reads as under:-

“(4) Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules”.

Section 19(4) would be applicable only after the O.A. is admitted and not before that.

18. In view of above, it cannot be stated that order dated 18.10.2011 is bad in law. This contention of the applicant is rejected. Since respondents have already passed an order, therefore, applicant would be governed by it unless he challenges the same. The OA in present circumstances is not maintainable. The same is accordingly dismissed having become infructuous. However, liberty is given to the applicant to challenge the final order in case he is aggrieved by it. No costs.