2012 (5) TMI 190 - HC - Indian Laws

Allegation of offence by the employee - CBEC - employee has crossed the age of superannuation even if he had continued in service. - writ jurisdiction - held that - We could have answered the question of subsistence allowance also. But the order of dismissal was made on 31.1.2012. We are not going to look as to on which date it was served on the employee. But if we are to answer any jurisdictional issue regarding the said disciplinary proceedings; for one thing, we may be going beyond our jurisdiction under Article 226/227 of the Constitution. Secondly, more importantly, we may even be foreclosing the opportunity of the employee for judicial review of the disciplinary proceedings as it now stands before the Tribunal. We may then be forcing him to get confined to the statutory appellate remedy before the appellate authority in the department. In the fitness of things, having regard to the totality of the facts and circumstances, we deem it appropriate to remit the entire matter after noticing the aforesaid facets and laying down the clear interpretation of Annexure A7 order dated 7.10.2008 to be in the manner in which we have stated above.

Summary

Issues Involved:
1. The effect of Annexure A7 order dated 7.10.2008.
2. Whether the employee could be deemed to have been under suspension from 8.4.2005.
3. The Tribunal's finding on the issue of subsistence allowance.

Detailed Analysis:

Issue 1: Effect of Annexure A7 Order Dated 7.10.2008
The Annexure A7 order, issued by the Joint Commissioner of the Cochin Commissionerate of Central Excise and Customs, set aside the employee's dismissal from service, directed a further inquiry under the CCS (CCA) Rules, 1965, and deemed the employee to have been placed under suspension from 8.4.2005. The competent authority considered the employee's acquittal by a higher court and decided to nullify the dismissal order, thus necessitating a further inquiry into the allegations that led to his initial dismissal. This order is self-executing in setting aside the dismissal and legally valid in ordering a further inquiry.

Issue 2: Deemed Suspension from 8.4.2005
The Tribunal's decision to deem the employee under suspension from 8.4.2005 was challenged. The court clarified that Rule 10(4) of the CCA Rules applies only when a penalty of dismissal, removal, or compulsory retirement is set aside by a court of law, and a further inquiry is ordered. The competent authority's decision to deem the employee under suspension retroactively from 8.4.2005 was not legally sustainable. Instead, the suspension should be effective from 7.10.2008, the date of the order, and not retroactive. The employee is entitled to full pay and allowances from the date of acquittal (8.8.2007) until the suspension order (7.10.2008).

Issue 3: Subsistence Allowance
The Tribunal's decision on subsistence allowance was found to be inconsistent with the Apex Court's ruling in Union of India v. R.K. Chopra, which states that escalated pay scales during suspension do not affect subsistence allowance. The competent authority should reassess the subsistence allowance at the end of the suspension period, considering the final outcome of the disciplinary proceedings. The Tribunal's decision on this matter was remanded for reconsideration in light of the Apex Court's ruling.

Conclusion:
The court set aside the Tribunal's order to the extent indicated, remitting the matter for further consideration. The employee's deemed suspension from 8.4.2005 was invalid; instead, the suspension was effective from 7.10.2008. The issue of subsistence allowance was remanded to the Tribunal for reconsideration, and the employee was entitled to full pay and allowances from 8.8.2007 to 7.10.2008. The parties were directed to appear before the Tribunal on 14.05.2012 for further proceedings.