Union Of India vs R.K.Chopra

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 2 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. 3

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 the Tribunal in J.S. Kharat Vs. Union of India [2002-2003 (CAT) Full 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, 4 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.

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:-

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.

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.

Provided that.--

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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 2 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.

February 01, 2010.