Union of
India Vs. R.K.Chopra [2010] INSC 82 (1 February 2010)
Judgment
Reportable
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1096
OF 2010 [ARISING OUT OF SLP (CIVIL) NO.9071 OF 2009] UNION OF INDIA ...
APPELLANT VERSUS
K.S.
Radhakrishnan, J.
1.
Leave granted.
2.
We are, in this case, concerned with a claim of a Government
servant for revision of subsistence allowance based on the pay revision
effected by the Central Civil Services (Revision Pay ) Rules, 1997, which came
into force on the 1st day of January, 1996, while he was under suspension from
service.
3.
The Respondent herein was working as a Desk Officer in the
Department of Industrial Policy and Promotion under the Ministry of Commerce
and Industries. While so, a case was registered against him by Central Bureau
of Investigation under the Prevention of Corruption Act and he was placed under
suspension by the Department w.e.f. 06.06.1989 under rule 10 (2) of the CCS
(CCA) Rules 1965. Subsistence allowance due to him under Fundamental Rules 53
(1) (ii) (a) was paid to him which was later enhanced to 50% vide order No.
5/7/99, dated 30.05.1991. At the time of suspension he was in the scale of pay
of Rs. 2000-3500 and was drawing a basic pay of Rs. 2,825/-. While undergoing
suspension he made a representation on 22.7.2002 for revision of subsistence
allowance based on the 5th Pay Commission Report. Request was rejected by the
Government of India, Ministry of Commerce and Industries vide Memorandum dated
29.10.2002 stating that a person under suspension is not entitled to draw
either the increment during the period of suspension or get his pay fixed in
the revised scale. Later he filed another representation on 05.07.2005
reiterating the same request which was replied by Memorandum dated 18.08.2005
stating that his earlier representation was already rejected. Respondent was
later dismissed from service on 04.08.2005 since he was convicted by the
Criminal Court vide its judgment dated 30.03.2002.
4.
The Respondent after dismissal from service approached the Central
Administrative Tribunal (Principal Bench), New Delhi and filed O.A. No.29/2006
challenging the above-mentioned orders dated 29.10.2002 and 18.08.2005 and
sought a declaration that he was entitled to get subsistence allowance on the
revised pay-scale with effect from 1.1.1996. Reliance was placed on a Full
Bench order of Bench Judgments 169]. The Department took up the stand that in
view of Note 3 to Rule 7 of Central Civil Services (Revised Pay) Rules, 1997, (for
short `Revised Pay Rules') the Respondent would not be entitled to get
subsistence allowance on the revised pay-scale with effect from 1.1.1996.
Further, it was also contended that the Full Bench of the Tribunal in the case
of J.S. Kharat was not concerned with the applicability of the above-mentioned
Rules. Rejecting the contention the Tribunal took the view that it would be
unjust to deny the subsistence allowance on the basis of revised pay to the
persons who stood suspended prior to 01.01.1996, especially when persons who
were suspended after that date would be entitled to get subsistence allowance
on the revised pay scale. This, according to the Tribunal, would lead to an
anomalous situation. The Tribunal, however, held that since the respondent did
not challenge the earlier communication dated 29.10.2002, rejecting his claim,
he would not be entitled to any arrears on account of revised subsistence
allowance till the said date. Further, it was ordered that he would be entitled
to arrears of revision of subsistence allowance from 01.01.2002 till 04.08.2005
when he was dismissed from service.
5.
Aggrieved by the order passed by the Tribunal, the Union of India
took up the matter before the Delhi High Court vide Writ Petition (Civil)
No.1899/2007. The High Court following its earlier judgment in Commissioner of
Police v. Randhir Singh [Writ Petition (Civil) No.713/2008 decided on
29.01.2008] dismissed the appeal holding that it did not find any infirmity in
the order of the Full Bench of the Tribunal in J.S. Kharat's case (supra).
Aggrieved by the said order dated 04.08.2008, this appeal has been preferred by
the Union of India.
6.
Shri Mohan Parasaran, Additional Solicitor General of India
submitted that the Tribunal as well as the Delhi High Court have not properly
appreciated the scope of Note 3 to Rule 7 of the Revised Pay Rules. Learned
counsel submitted that the Full Bench of the 5 Tribunal in J.S. Kharat's case
(supra) was primarily concerned with the interpretation of Rule 6(1) the
Railway Servants (Revised Pay) Rules 1986 and the validity of Note 3 to Rule 7
of the Revised Pay Rules, was not an issue before the Tribunal. Learned counsel
also submitted that the High Court and Tribunal have failed to appreciate that
the payment of subsistence allowance is based on leave salary (not pay)
admissible during half pay leave and leave salary linked to pay drawn
immediately before proceeding on leave. Learned counsel submitted that the
respondent is, therefore, not entitled to the benefit of subsistence allowance
linked to pay or revised pay which he would have drawn but for being placed
under suspension. Learned counsel also submitted that the Government of India's
decisions 3 (e) below FR 53 shows that the subsistence allowance cannot be
revised with retrospective effect and in the instant case the respondent was
dismissed from service and the question of revision of subsistence allowance
did not arise. Learned counsel also pointed out that there was no challenge to
the validity of Note -3 to Rule 7 of Revised Pay Rules and the Tribunal
committed an error in failing to apply to the said note to rule 7 to the
instant case. The respondent appeared in person and submitted that there is no 6
illegality in the order passed by the Tribunal which was confirmed by the High
Court.
7.
We notice both the High Court as well as the Tribunal has placed
heavy reliance on the order of Full Bench of the tribunal in J.S. Kharat's case
(supra) and took the view that the delinquent officer would be entitled to
enhanced subsistence allowance on the basis of the upward revision of pay based
on the 5th Central Pay Commission Report, implemented by the Revised Pay Rules.
Reference
was also made to the decisions of this Court in State of Maharashtra vs.
Chandrabhan Tale [(1983) 3 SCC 387]; Khem Chand vs. Union of India [ 1963 Supp.
1 SCR 229]; Jagdamba Union of India & Ors. [(1999) 8 SCC 110]; and Umesh
Chandra Misra vs. Union of India [1993 Supp. (2) SCC 210]
8.
We notice that in none of the aforesaid judgments the validity of
Note 3 to rule 7 of the Revised Pay Rules came up for consideration.
In
Chandrabhan's case (supra), this Court was examining the validity of the second
proviso to Rule 151 (1) (ii) (b) of the Bombay Civil Service Rules, 1959 which
prescribed payment of subsistence 7 allowance at the rate of Rs. 1 per month.
Court struck down the proviso as void and unreasonable and ordered that the
Civil Servant is entitled to the normal subsistence allowance. The above ruling
is of no assistance to the respondent.
9.
In Khem Chand's case this Court was examining the validity of Rule
12(4) of the CCS (CC&A) Rules 1957 which has nothing do with the question
involved in the present case. This Court was generally explaining the scope and
effect of a suspension order stating that the real effect of a suspension order
is that though a Government servant continues to be a member of the Service he
is not permitted to work during the period of suspension and he is entitled to
subsistence allowance which is normally less than the salary.
10.
In Jagdamba Prasad Shukla's case (supra) subsistence allowance was
denied to the Government Servant since he had omitted to furnish the
certificate as required under the U.P.
11.
Fundamental Rules 53(2) indicating that he was not employed
elsewhere during the period of suspension. Nonpayment of subsistence allowance,
this Court held, has vitiated the departmental enquiry and the consequent
removal order.
12.
In P.L. Shah's case (supra) this Court was dealing with a case of
reduction of subsistence allowance from 50% to 25% of salary.
Order was
challenged before the Tribunal which dismissed the petition on the ground of
delay. This Court set aside the orders of the Tribunal and the matter was
remanded for fresh consideration, holding that the subsistence allowance should
be sufficient for the bare sustenance in this world in which prices of the
necessaries of life are increasing every day on account of conditions of
inflation obtaining in the country. It was held that since Government Servant
cannot engage himself in any other activity during the period of suspension and
the amount of subsistence allowance payable to the Government Servant be
reviewed from time to time when proceedings drag on long time even though there
may be no express rule insisting of such review.
13.
In R.P. Kapur's case (supra), this Court was dealing with the
scope of Railway Services (Pension) Rules, 1993 and the effect of Note 1 and
proviso to Rule 50 and the Court took the view that the above-mentioned proviso
is not applicable to a case of compulsory retirement. The scope of Note 3 to
Rule 7 was not in issue in R.P.Kapur's case.
14.
In Umesh Chandra Misra's case (supra), this Court was dealing with
the case of a railway employee who was denied subsistence allowance at the rate
of 75% of the salary for the period from May 20, 1976 to February 17, 1977 and
this Court directed the respondents to pay him the subsistence allowance from
November 20, 1975 to May 19, 1976 at the rate of 50 per cent of the salary and
from May 20, 1976 to February 17, 1977 at the rate of 75 per cent of the salary
with interest on both the amounts with a further direction that the subsistence
allowance be paid on the basis of the revised scale of pay. The legality of
Note 3 to Rule 7 was never an issue in that case.
15.
The claim for payment of subsistence allowance of a Government
servant is dealt with in Chapter VIII of Fundamental Rules. FR 53 which
relevant for our purpose reads follows:- "F.R.53.(1) A Government servant
under suspension or deemed to have been placed under suspension by an order of
the appointing authority shall be entitled to the following payments, namely:-
(i) xxxx xxxx xxxx xxxx (ii) in the case of any other Government servant-- 1
(a) a subsistence allowance at an amount equal to the leave salary which the
Government servant would have drawn, if he had been on leave on half average
pay or on half-pay and in addition, dearness allowance, if admissible on the
basis of such leave salary;
Provided
that where the period of suspension exceeds three months, the authority which
made or is deemed to have made the order of suspension shall be competent to
vary the amount of subsistence allowance for any period subsequent to the
period of the first three months as follows:- (i) the amount of subsistence allowance
may be increased by a suitable amount, not exceeding 50 per cent of the
subsistence allowance admissible during the period of the first three months,
if, in the opinion of the said authority, the period of suspension has been
prolonged for reasons to be recorded in writing, not directly attributable to
the Government servant;
(ii) the
amount of subsistence allowance, may be reduced by a suitable amount, not
exceeding 50 per cent of the subsistence allowance admissible during the period
of the first three months, if, in the opinion of the said authority, the period
of suspension has been prolonged due to reasons, to be recorded in writing,
directly attributable to the Government servant;
(iii) the
rate of dearness allowance will be based on the increased or, as the case may
be, the decreased amount of subsistence allowance admissible under sub-clauses
(i) and (ii) above.
(b) Any
other compensatory allowances admissible from time to time on the basis of pay
of which the Government servant was in receipt on the date of suspension
subject to the fulfillment of other conditions laid down for the drawal of such
allowances.
xxxx xxxx
xxxx
15. The
said Rule provides that the Government servant under suspension shall be
entitled to subsistence allowance at an amount equal to the leave salary which
the Government servant would have drawn if he had been on leave on half average
pay or on half pay and in addition, dearness allowance if admissible on the
basis of such leave salary. The proviso to Rule 53 (1)(ii) (a) says that where
the period of suspension exceeds three months, the authority is competent to
vary the amount subject to some restrictions.
16.
We may in this connection refer to a Government of India order
G.M.O.M. No. F-2(36)-Ests/-III/58 dated 27th August, 1958 given in the Swamy's
compilation of Fundamental and supplementary Rules, which deals with the
revision of scale of pay while a Government Servant is under suspension. The
two categories of cases have been dealt with in that Office Memorandum. One
refers to cases in which the revised scale of pay takes effect from a date
prior to the date of suspension and other cases in which the revised scales of
pay takes effect from a date falling within the period of suspension.
1 Office
Memorandum reads as follows:- "(2) Revision of scale of pay while under
suspension --A question having arisen as to whether a Government servant under
suspension might be given an option to elect any revised scales of pay which
might be introduced in respect of the post held by him immediately prior to
suspension is revised, the Government of India have decided as follows:-
1. Cases
in which the revised scale of pay takes effect from a date prior to the date of
suspension.
In such
cases the Government servant should be allowed to exercise the option under FR
23 even if the period during which he is exercise the option falls within the
period of suspension. He will be entitled to the benefit of increase in pay, if
any, in respect of the duty period before suspension, and also in the
subsistence allowance, for the period of suspension, as a result of such
option.
2. Cases
in which the revised scale of pay takes effect from a date falling within the
period of suspension.
(a) Under
suspension a Government servant retains a lien on his substantive post. As the
expression `holder of a post' occurring in FR 23 includes also a person who
holds a lien or a suspended lien on the post even though he may not be actually
holding the post, such a Government servant should be allowed the option under
FR 23 even while under suspension.
The
benefit of option will, however, practically accrue to him in respect of the
period of suspension, only after his reinstatement depending on the fact
whether the period of suspension is treated as duty or not.
1 (b) A
Government servant who does not retain a lien on a post the pay of which is
changed, is not entitled to exercise the option under FR 23. If, however, he is
reinstated in the post and the period of suspension is treated as duty, he may
be allowed to exercise the option after such reinstatement. In such cases, if
there is a time-limit prescribed for exercising the option and such period had
already expired during the period of suspension, a relaxation may be made in
each individual case for extending the period during which the option may be
exercised.
17.
The above mentioned Rules as well as the Memorandum makes it clear
that if there is a revision of scale of pay in respect of a post held by a
Government Servant, prior to the suspension period, he is permitted to exercise
option under FR 23, even if the period during which he is to exercise the
option falls within the period of suspension and then, he will be entitled to
the benefit of increase in pay and also in subsistence allowance for the period
of suspension, as a result of such option. But if the revised scale of pay
takes effect from a date falling within the period of suspension then, the
benefit of option, for revised scale of pay will accrue to him in respect of
the period of suspension only after his reinstatement depending on the fact
whether the period of suspension is treated as duty or not. In the present
case, the Revised Pay Rules, came into force on 1st day of January, 1996 when
the respondent was under suspension.
Therefore,
even if he had exercised his option under FR 23 for the benefit of the above
pay revision, the same would have accrued to him only after his reinstatement
depending on the fact whether the period of suspension is treated as `on duty'
or not. So far as the respondent is concerned, he was dismissed from service on
4.8.2005, therefore the question of the benefit of the revised pay and the
subsistence allowance thereon on the basis of Revised Pay Rules did not accrue
to him.
18.
The Revised pay Rules, which came into force on 01.01.1996 in our
view are in conformity with the FR 53 and the above-mentioned Office Memorandum
issued by the Government of India.
19.
Rule 5 of Revised Pay Rules deals with drawal of pay in the
revised scales which reads as follows:- "5. Drawal of pay in the revised
scales.-- Save as otherwise provided in these rules, a Government servant shall
draw pay in the revised scale applicable to the post to which he is appointed:
Provided
that a Government servant may elect to continue to draw pay in the existing
scale until the date on which he earns his next or any subsequent increment in
the existing scale or until he vacates his post or ceases to draw pay in that
scale.
xxxx xxxx
xxxx Rule 6 which deals exercise of option reads as follows:-
6.
Exercise of Option.---- (1) The option under the proviso to Rule 5 shall be
exercised in writing in the form appended to the Second Schedule so as to reach
the authority mentioned in sub-rule (2) within three months of the date of
publication of these rules or where an existing scale has been revised by any
order made subsequent to that date, within three months of the date of such
order.
Provided
that.-- (i) in the case of a Government servant who is, on the date of such
publication or, as the case may be, date of such order, out of India on leave
or deputation or foreign service or active service, the said option shall be
exercised in writing so as to reach the said authority within three months of
the date of his taking charge of his post in India; and (ii) where a Government
servant is under suspension on the 1st day of January, 1996, the option may be
exercised within three months of the date of his return to his duty if that
date is later than the date prescribed in this sub-rule.
xxxx xxxx
xxxxx 1
20.
On a combined reading of Rules 5 and 6, it is clear that a
Government servant under suspension on the 1st day of January, 1996 is entitled
to exercise his option within three months of the date of his return to duty if
that date is later than the date prescribed in the sub rule and if the
intimation is not received he is deemed to have elected to be governed by the
revised scale of pay with effect on and from the 1st day of January, 1996 on
his return to duty. Respondent herein did not return to duty since he was
dismissed from service and hence there was no question either exercising the
option or the application of the deeming provision.
21.
Rule 7 deals with the fixation of initial pay in the revised scale
, which reads as follows:- "7. Fixation of initial pay in the revised
scale. - (1) The initial pay of a Government servant who elects, or is deemed
to have elected under sub-rule (3) of the Rule 6 to be governed by the revised
scale on and from the 1st day of January, 1996, shall, unless in any case the
President by special order otherwise directs, be fixed separately in respect of
his substantive pay in the permanent post on which he holds a lien or would
have held a lien if it had not been suspended, and in respect of his pay in the
officiating post held by him, in the following manner, namely:- xxx xxx xxx xxx
xxx xxx 1 Note 3. Where a Government servant is on leave on st the 1 day of
January, 1996, he shall become entitled to pay in the revised scale of pay from
the date he joins duty. In case of Government servant under suspension, he
shall continue to draw subsistence allowance based on existing scale of pay and
his pay in the revised scale of pay will be subject to final order on the
pending disciplinary proceedings."
22.
The word "Existing scale" has been defined under Rule 3
(2) which reads as under:
"existing
scale" in relation to a Government servant means the present scale
applicable to the post held by the Government servant (or as the case may be,
personal scale applicable to him) as on the 1st day of January, 1996 whether in
a substantive or officiating capacity."
23.
The word `Revised scale' has been defined under Rule 3(5), which
reads as under:
"revised
scale" in relation to any post specified in column 2 of the First Schedule
means the scale of pay specified against that post in column 4, thereof unless
a different revised scale is notified separately for that post;".
24.
Note 3 under Rule 7, therefore, indicates when a Government
servant was on leave on 1.1.1996, he would become entitled to pay in the
revised scale of pay from the date he joined the duty.
However,
in the case of a Government servant under suspension, he 1 would continue to
draw subsistence allowance based on the then existing scale of pay and his pay
in the revised scale of pay would be subject to final order on the pending
disciplinary proceedings.
25.
The Revised Pay Rules were framed by the President of India in
exercise of the powers conferred by the proviso to Article 309 and clause 5 of
Article 148 of the Constitution. The proviso to Article 309 enables the
President to make Rules to regulate the recruitment and conditions of service
of the persons mentioned therein. The Rules framed by the President of India in
exercise of the powers conferred by the proviso to Article 309 have the force
of law. Further, Note 3 to Rule 7 of Revised Pay Rules, 1997 were not
challenged.
26.
On a combined reading of Note 3 to Rule 7 of the Revised Pay Rules
and FR 53(1)(ii)(a) with the clarification with Office Memorandum dated 27th
August, 1958 it is clear 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 in the subsistence allowance for
the period of suspension, but if the revision scale of pay takes effect from a
date falling within the period of suspension then the benefit of revision of
pay and the subsistence allowances will accrue to him, only after reinstatement
1 depending on the fact whether the period of suspension is treated as duty or
not. In view of the clear distinction drawn by the Rule making authority
between the cases in which the Revised scale of pay takes effect from a date
prior to the date of suspension and a date falling within the period of
suspension, the plea of discrimination raised cannot be sustained especially
when there is no challenge to the Rules. The benefit of pay revision and the
consequent revision of subsistence allowance stand postponed till the
conclusion of the departmental proceedings, if the pay revision has come into
effect while the Government servant is under suspension. So far as the present
case is concerned, the Revised Pay Rules came into force on 1st January, 1996
when the respondent was under suspension and later he was dismissed from
service on 04.08.2005 and hence the benefit of pay revision or the revision of
subsistence allowance did not accrue to him. The Tribunal as well as the High
Court have committed an error in holding that the respondent is entitled to the
benefit of Revised Pay Rules. We, therefore, allow the appeal and set aside
those orders.
27.
We are informed that the respondent herein has filed an appeal
against the order of conviction passed by the Criminal Court and the same is
pending consideration and if he is acquitted in appeal, the disciplinary
authority would take appropriate decision on the respondent's claim for revised
pay scale and the subsistence allowance in accordance with law.
..................................J.(R.V. Raveendran)
..................................J.(K.S. Radhakrishnan)
New Delhi;
February 01, 2010.
Back
